Communicated on 9 March 2015
THIRD SECTION
Application no. 55093/09
Centre for Legal Resources on behalf of Miorița Malacu and others
against Romania
lodged on 6 May 2009
STATEMENT OF FACTS
1. The application was lodged by the Centre for Legal Resources (CLR), based in Bucharest, Romania, on behalf of five Romanian nationals, Ms Mioriţa Malacu, Ms Maricica Barbu, Ms Maria Beştea, Ms Ioana Istrate and Mr Dumitru Ticu, born respectively in 1972, 1969, 1937, 1936 and 1942. The International Centre for the Legal Protection of Human Rights (Interights), based in London, UK, acted as advisor to counsel until 27 May 2014.
A. The circumstances of the case
2. The facts of the case, as submitted by the CLR, refer to the death of the five applicants in February 2004, while hospitalized in the Poiana Mare Hospital (hereinafter “the PMH”) and to the official investigation thereof. These facts may be summarised as follows.
1. The death of Ms Mioriţa Malacu
3. Ms Malacu was born in 1972, the precise date and the place of her birth being unknown. She grew up in a social care institution for children, namely at Corlate Orphanage Center (Căminul de copii Corlate). It is submitted that Ms Malacu had no known relatives.
4. On 27 March 1990, upon reaching the age of majority, she was transferred to the PMH, at the time being diagnosed with moderate retardation (oligofrenie grad II), epilepsy and congenital strabismus. The medical record mentioned that Ms Malacu was not able to take care of herself, but that she was friendly and well integrated in the community.
According to her medical record kept while at the PMH, Ms Malacu was perceived as “peaceful”, “cooperative”, sometimes “disoriented in time and space”; several health problems were mentioned, such as the recurrent appearance of cuts on her body, the origin of which was never examined. On one such occasion, when referred to the Hospital No. 1 in Craiova on 19 September 2001, she was given treatment for extensive slashes on her arms and buttocks. At the same time the medical staff concluded that she was infected with syphilis.
The record noted that on 14 January 2004 Ms Malacu refused to leave the bed and lacked appetite. On 21 January, when diagnosed with pediculosis, she was isolated for disinfection. In spite the fact that her state of health worsened progressively, it appears that she was not given other medication, except for tranquilizers.
5. On 7 February 2004 Ms Malacu died and she was buried in the hospital’s cemetery.
The death certificate, filled in the same day by doctor I.G., mentioned as cause of death a cardio-respiratory failure and an acute myocardial infarction against a background of moderate retardation.
No autopsy was carried out.
2. The death of Ms Maricica Barbu
6. Ms Barbu was born on 25 April 1969 in Murgaşi Village, Dolj County.
According to CLR, Ms Barbu spent almost her entire life in social care institutions. The existing records did not mention the existence of any relatives to have contacted her throughout her institutionalization.
She appears to have been hospitalised at the juvenile neuropsychiatry ward of the general hospital in Poiana Mare when she was five, and she was transferred to the PMH on 19 June 1985, diagnosed with “microcephaly, infantile encephalopathy and severe retardation”.
On 7 January 1986 the medical record of Ms Barbu noted that she had underwent an abortion, justified in so far as she had a “mental illness; patient lacks capacity”. There is no evidence concerning the patient’s consent for this intervention.
Ms Barbu was formally discharged from the PMH on 26 July 2002, but readmitted three days later, “upon her request”. The symptoms upon readmission referred to “psychomotor agitation, classical crises, verbal and behavioural stereotypes”. Throughout hospitalisation, Ms Barbu was described as both “uncooperative and peaceful” or as “uncooperative and restive”, being prescribed neuroleptics, sedatives and tranquilisers.
On 12 January 2004 Ms Barbu was treated with antibiotics for a furuncle in the orbital area.
7. On 15 January 2004 the medical record mentioned that
“the patient displays generally altered state, irregular breathing; there is no heating in the ward when outside there are -10 degrees Celsius”.
She was given vitamins, antibiotics and a glucose drip. However, she died later that day, the death certificate mentioning as immediate cause of death a cardio-respiratory failure, caused by bronchopneumonia.
No autopsy was carried out.
3. The death of Ms Maria Beştea
8. Ms Beştea was born on 4 June 1937 in Brazda lui Novac Village, Dolj County.
She was hospitalized at the PMH several times, being diagnosed with paranoid schizophrenia. The CLR submitted that the circumstances in which Ms Beştea was hospitalized at the PMH were unclear, but in any event, the medical file contained no information regarding potential relatives. However, her death certificate mentioned “married” under the “civil status” heading.
Ms Beştea’s latest hospitalization period started on 5 July 1996 and lasted until her death. While in hospital, she was prescribed neuroleptics and tranquilisers, the medical record mentioning that she was “cooperating with difficulty”, “delirious”, “peaceful” or “incoherent”.
On 28 November 2003 Ms Beştea was sent for a multidisciplinary examination outside the hospital; she was diagnosed with oesophageal stenosis and referred to a surgeon, who was however unsuccessful in trying to address her throat problems. Ms Beştea was thus sent back to the PMH, no treatment being prescribed to her.
In view of these problems, she registered major weight loss; she was given vitamins and a glucose drip. On 14 January 2004, the records mentioned that the patient needed urgent specialised examination and treatment; in a marginal note, a doctor recommended that the medication allocated to a different patient (C.M.) be transferred to her.
9. On 17 January 2004 at 4.00 am Ms Beştea died. As doctor I.G., who was supposed to be on night duty, was missing, a doctor on duty in another ward, V.C., noted in the medical record that she had been informed about the patient’s death and that “the body did not display traces of a violent death”.
The death certificate, filled in by doctor G.P. on 19 January 2004, mentioned as cause of death a cardio-respiratory failure and an ischaemic cardiopathy against a background of paranoid schizophrenia.
No autopsy was carried out.
4. The death of Ms Ioana Istrate
10. Ms Istrate was born on 24 June 1935 in Călăraşi Village, Dolj County.
It is submitted that the circumstances in which Ms Istrate was confined to the PMH are unclear. Her medical record refers briefly to the existence of some relatives – in the context when on 11 March 1998 the doctor had proposed to them to release the patient, as her mental state no longer required hospitalization. The family however disagreed with the proposal, and consequently, Ms Istrate was left at the PMH.
Ms Istrate was hospitalized at the PMH several times, the last uninterrupted period of hospitalisation starting from 29 June 1994 until her death. Her diagnosis was “old age depression” (depresie de involuție), associated with symptoms of “psychomotor agitation, behavioural problems, delirious ideas”, being perceived while in hospital as “calm and uncooperative”.
In her medical record it is mentioned that she suffered from dental problems, being treated with painkillers.
It is alleged that on 14 January 2004 she was supplied with the medication prescribed for another patient, no other details or justification being given.
11. On 2 February Ms Istrate displayed a weak arrhythmic heartbeat, not responding to verbal and painful stimuli, having pale tegument and cold limbs. Later that day she was pronounced dead, the certificate indicating as cause of her death a cardio-respiratory failure resulted from an acute myocardial infarction and old age depression.
No autopsy was carried out.
5. The death of Mr Dumitru Ticu
12. Mr Ticu, born on 27 July 1941 in Craiova, was confined to the PMH on 23 December 1996, diagnosed with paranoid schizophrenia, for which he was prescribed various psychiatric medication.
13. The records did not mention the existence of any family.
The CLR alleged that following Mr Ticu’s death, they had found and contacted his parents, trying to persuade them to become involved in the domestic proceedings concerning his death. However, the parents refused, invoking that they had a good relationship with some staff from the hospital and that it had been their decision to hospitalize Mr Ticu at the PMH in the first place.
14. Starting with 23 July 2003, Mr Ticu’s state of health degraded, the doctor diagnosing gastric problems, for which specific medication was given. On 22 January 2004 he was referred to Calafat Hospital in order to remove an infected lipoma that had been diagnosed on 9 January 2004. At that time, Mr Ticu also had pediculosis. On 26 January the patient’s state of health deteriorated; therefore the anti-psychotic medication was interrupted.
15. On 28 January 2004 Mr Ticu was pronounced dead, the death certificate mentioning as main cause a myocardial infarction which led to cardio-respiratory failure and as associated conditions, paranoid schizophrenia, secondary anaemia and cachexia.
No autopsy was carried out.
6. Visit by staff of the CLR
16. On 20 February 2004 the CLR carried out a monitoring visit at the PMH. Shortly afterwards, they issued a public statement and a report, in which they attempted to draw the public’s attention to the tragic situation found at the hospital. Among other issues, the report pointed out to the scarcity of the human resources (for the 440 patients there were five psychiatrists – of which two coming daily – and six general practitioners, working in shifts for five hours daily), the insalubrity of the wards and toilets (no running water in certain wings of the hospital), overcrowded beds (more patients in one bed), the insufficient and unsatisfactory food given to the patients, their lack of clothes and shoes, as well as the inappropriate and insufficient medical treatment provided to the patients.
B. Requests to the Romanian General Prosecutor
17. In a letter of 23 February 2004 the CLR urged the Romanian General Prosecutor to initiate criminal proceedings in respect of those responsible for the appalling conditions in which patients were kept and treated at the PMH. Without indicating specifically the names of the applicants, the CLR referred to the report they issued following their visit at the PMH, in which they denounced the serious shortcomings in the medical and confinement procedures at the hospital, while asking that the patients be transferred to more appropriate establishments.
In the lack of any visible action or response to its requests, the CLR reiterated them in a letter of 24 August 2004.
18. Similar requests were lodged in parallel with the CLR by the National Association of Patients and Social Health Insurance Holders (Asociaţia naţională a asiguraţilor şi pacienţilor din asigurările sociale de sănătate) and by Amnesty International, on 20 February 2004 and 23 February 2004, respectively. The charges referred to by the first association were “genocide” and “inhuman treatment” in relation to the care of the patients at the PMH, as a result of which 21 had died of hunger and cold in the past month; the Amnesty International mainly urged for the establishment of a public inquiry concerning the death, “apparently from malnutrition and hypothermia”, of several patients at the PMH – “17 in 2004 and 84 in 2003”.
19. As a result of these requests, on 12 March 2003 the Prosecutor Office attached to the Dolj County Court opened a criminal investigation concerning “the suspicious deaths of 17 patients – a death being regarded as suspicious also when it occurs in a psychiatric hospital, when the carrying out of an autopsy is mandatory”. Among these patients were the applicants.
1. Criminal investigation concerning the death of Ms Malacu
20. The forensic report issued on 23 March 2004 by the Craiova Forensic Medicine Institute concluded that the death of Ms Malacu was not violent:
“the notes made in the medical record point towards a probable diagnosis of septicaemia with multiple starting points, in a body with marked low immunity. ... we consider that the treatment for the psychiatric condition was correct and adequate, while the treatment for the respiratory symptoms was correct but insufficient”.
An exhumation was further recommended to clarify the medical cause of death and to detect any signs of violence and establish their origin and cause.
21. The exhumation took place on 30 March 2004, the report concluding that
“the death was due to an acute cardio-respiratory insufficiency which was the result of a pulmonary oedema on a body with multiple organic ailments”.
22. Based on the evidence in the file (medical documents, reports and the statement of one witness, nurse at the PMH), the prosecutor issued on 7 June 2004 a non-indictment decision.
23. On 31 August 2004 this decision was quashed by the superior prosecutor from the Prosecutor’s Office attached to the High Court of Cassation and Justice. It was held that the adduced evidence in the file revealed that the medical treatment and care may have been mistaken and inappropriate. Certain aspects needed more clarification: who was responsible for the autopsy not having been carried out; why the patient had not been transferred to a hospital specialized in pulmonary affections and who was responsible for that decision; and whether a specific schedule for the hygienization of the facility existed and had been respected.
24. Following these instructions, more evidence was adduced in the case, including witnesses’ statements and information regarding the financial situation of the PMH.
25. The superior commission from the Mina Minovici Institute of Forensic Medicine (IFM) gave its opinion on 28 October 2004, mentioning the failure of the authorities to have carried out an autopsy. The conclusions referred to major administrative deficiencies and to the lack of the resources in the hospital, including the lack of heating in the wards, insufficient food, the scarcity of the human resources (medical and administrative staff), lack of medicines and of proper paraclinical methods of investigation – all these were considered to have favoured the resultant death, reducing significantly the chances of any therapy. However, in view of the low immunity of the patient, the prospects of success of any potential treatment were uncertain. Therefore, it was difficult to objectively establish a direct link between the medical treatment given to the patient and her death.
The commission expressed its disagreement with the report concluded on the occasion of the exhumation carried out on 30 April 2004.
26. Based on this evidence, on 11 February 2005 the prosecutor issued a non-indictment decision in respect of the doctors who had been responsible for the medical care and treatment of Ms Malacu, as well as of those responsible for the purchase of medical and food supplies for the hospital. In his reasoning, the prosecutor held that: the fact that the funds allocated to the hospital were insufficient had been signalled by the PMH management, with no positive repercussions. Doctor F.P had declared that the requests for transferring the patients to other specialized hospitals were very difficultly accepted, in so far as “the somatic disease was accompanied by mental illness, which everyone was running from”.
2. Criminal investigation concerning the death of Ms Barbu
27. The forensic examination ordered by the Prosecutor’s Office attached to the Dolj County Court confirmed on 25 March 2004 the conclusions of the death certificate, while noting that “the treatment for the bronchopneumonia was correct but insufficient and applied with delay”. An exhumation was considered unnecessary.
28. On 22 June 2004 the prosecutor decided not to initiate criminal proceedings.
29. The superior prosecutor from the Prosecutor’s Office attached to the High Court of Cassation and Justice quashed this decision on 31 August 2004, holding that specific elements, such as medical errors and an inappropriate care and treatment may have contributed to the patient’s death. More clarification was needed concerning the scheme of the PMH staff, including their tasks and the schedules they were bound to respect. Evidence was to be adduced so as to reveal why the patient had not been transferred in time to a hospital unit specialized in pneumology. The investigation was to cover the issue of the financing of the hospital and whether the money received was spent to buy medicine, food, fuel, cleaning supplies etc.
30. On 28 October 2004 a superior commission from the IFM noted that in spite of the legal provisions which made it compulsory to carry out an autopsy, no such act had been carried out on the body of Ms Barbu. Like in the case of Ms Malacu (see paragraph 25 above), the major administrative deficiencies detected were considered to have favoured the resultant death, reducing significantly the chances of any therapy.
31. The prosecutor issued a non-indictment decision on 16 February 2005, essentially holding that there was no evidence in the file proving that the medical staff at the PMH had any responsibility in the death of Ms Barbu.
3. Criminal investigation concerning the death of Ms Beştea
32. The forensic report ordered by the prosecutor was issued on 26 March 2004. It reiterated that the death had not been violent and that the malnutrition caused by the oesophageal stenosis could have determined the cardio-respiratory failure; the treatment prescribed for the psychiatric condition had been appropriate, while the medication given for the other ailments had been only palliative; the symptomatic treatment (vitamins, glucose) was recommended too late.
33. A subsequent forensic report, issued out on 4 June 2004 based on the exhumation carried out on 16 April 2004 revealed that:
“1. The death of the said Maria Beştea aged 66 was violent.
2. It was due to a cardio-respiratory failure, the consequence of a diffuse meningaeal haemorrhage, the consequence of a cranial-cerebral traumatism.
3. The violent lesions could have been caused by an impact with or by solid objects (most probably a fall) on an organism with multiple ailments.
4. There is a direct and unconditioned causal link between the violent lesions and the death.
5. There are no traces of medical or surgical treatment on the body.”
34. Based on these elements, as well as on the statements of several witnesses (staff from the PMH) who alleged that Ms Beştea was “generally calm, but during the crisis she became aggressive, hitting herself while falling”, on 7 June 2004 the prosecutor decided not to institute any criminal proceedings, holding that the violent death of Ms Beştea could have been determined by the patient’s fall during a crisis.
35. The superior prosecutor from the Prosecutor’s Office attached to the High Court of Cassation and Justice quashed this decision on 31 August 2004, holding, essentially, that the investigation authorities had failed to establish the cause of death and the circumstances leading to it, such as potential medical errors, insufficient medical treatment etc. More evidence was to be adduced concerning the reason for which the patient had not been timely transferred to a hospital specialized in pulmonary, heart and digestive problems so as to establish who was responsible for such a decision and for the failure to carry out an autopsy on the body.
36. On 28 October 2004 a superior commission from the IFM noted that the violent injuries could have been determined by the patient’s falling from the bed.
37. On 11 February 2005 the prosecutor issued a non-indictment decision in respect of the doctors who had been responsible for the medical care and treatment of Ms Beştea, holding that her death had been not caused or determined by any criminal act.
4. Criminal investigation concerning the death of Ms Istrate
38. The forensic report of 25 March 2004 ordered by the prosecutor stated that exhumation was not necessary, that Ms Istrate’s death was not violent and that the treatment administered for the myocardial infarction had been inadequate, while the treatment for the dental condition was adequate, but insufficient, in the absence of a consultation by the specialist.
39. Accordingly, on 25 June 2004 the prosecutor issued a
non-indictment decision.
40. On 31 August 2004 this decision was quashed by the superior prosecutor from the Prosecutor’s Office attached to the High Court of Cassation and Justice, who held that more evidence was necessary so as to establish whether there had been any errors in the diagnosis and the medical treatment given to the patient. More information was needed concerning the reason for which the patient had not been timely transferred to a more appropriate hospital unit and regarding the failure of the authorities to have carried out an autopsy on the body.
41. On 28 October 2004 the superior commission of the IFM concluded that the cause of death of the patient could not be established, due to the lack of sufficient medical and paramedical records, as well as to the failure to carry out an autopsy on the body, mandatory according to the domestic legislation.
As in the case of Ms Malacu and Ms Barbu (see paragraphs 25 and 30 above), the commission noted that the available data supported the conclusion that major administrative deficiencies could have contributed to the death of the patient. However, in view of the low immunity of the patient, any potential treatment was uncertain as to its prospects of success. Therefore, it was difficult to objectively establish a direct link between the medical treatment given to the patient and her death.
42. Based on these elements, as well as on the opinion of one of the doctors at the PMH, who argued that the death of a mentally ill patient may occur instantaneously, as an effect of administering a long-term neuroleptic treatment, the prosecutor decided on 11 February 2005 not to pursue the criminal investigation. In its essential parts, the decision is very similar to that issued in respect of Ms Malacu (see paragraph 26 above).
5. Criminal investigation concerning the death of Mr Ticu
43. The forensic report issued on 26 March 2003 in relation to Mr Ticu’s death concluded that “the diagnosis of myocardial infarction is not supported from a clinical and laboratory point of view”, suggesting that a multidisciplinary consultation would have been necessary for an appropriate diagnosis and treatment. In any event, the treatment given to the patient was estimated as insufficient.
44. On 29 June 2004 the prosecutor issued a non-indictment decision.
45. This decision was quashed on 31 August 2004 by the prosecutor from Prosecutor’s Office attached to the High Court, who, while noting that the lack of hygiene at the PMH was proved by Mr Ticu’s lipoma and pediculosis, pointed out to a series of shortcomings in the official investigation, which essentially failed to identify the cause of death of Mr Ticu.
Certain other aspects were to be clarified, such as why the patient had been administered treatment for alleged gastric problems instead of what proved to be cardiac problems; why he had not been timely transferred to another hospital for his other illnesses and who was responsible for such a situation; his medical records were missing from the investigation file; no autopsy had been asked for or carried out; no information regarding the financing of the hospital in respect of insuring appropriate living conditions, as well as information relating to the effective use of such finance.
46. On an unspecified date in 2004 the superior commission of the IFM held that in the absence of relevant medical documents and of an autopsy, it was not able to indicate the actual cause of death. However, it made general remarks in respect of the lack of human and material resources at the hospital, which rendered inefficient the medical treatment given to the patients, thus contributing to the evolution of their diseases leading to their death.
47. The prosecutor decided on 10 February 2005 not to indict any of the medical staff at the PMH, holding that the patient benefitted from a similar treatment as all the other patients at the PMH, while there was no proof that the doctors responsible for his care had any intention to determine or contribute in any way to his demise.
6. Criminal investigation subsequent to the joining of the five applicants’ files
48. On an unknown date, M.S., Deputy Prosecutor of the Prosecutor’s Office attached to the High Court of Cassation and Justice quashed ex officio the non-indictment decisions issued in February 2005 (see paragraphs 26, 31, 37, 42 and 47 above) and joined eleven files regarding patients who died while at the PMH, including the files concerning the five applicants. The reasoning essentially reiterated the grounds for the reopening of the investigation mentioned in the previous quashing of non-indictment decisions adopted in August 2004 (see paragraphs 23, 29, 35, 40 and 45 above).
49. On 10 October 2006 the prosecutor from the Office attached to the Craiova Court of Appeal gave a non-indictment decision in respect of the charges on genocide and crimes against humanity. For the rest of the charges, he proposed that the case be taken over by the Prosecutor’s Office attached to the Calafat First Instance Court.
However, due to the high degree of complexity of the case, the file was eventually taken over by the Prosecutor’s Office attached to the High Court of Cassation and Justice on 21 May 2007.
50. On an unspecified date in July 2007, the General Prosecutor cancelled as unlawful the decisions quashing the non-indictment proposals adopted by prosecutor M.S. (see paragraph 48 above).
51. On 8 October 2007 the Prosecutor’s Office attached to the High Court of Cassation and Justice issued a non-indictment decision, following closely the reasoning set out in the previous decisions not to prosecute, adopted in February 2005.
This decision was contested by the CLR before the superior prosecutor, but the request was dismissed on 11 December 2007 and thus the non-indictment was upheld.
52. Pursuant to Article 2781 of the Romanian Criminal Procedure Code, the CLR challenged the non-indictment decision before the Craiova Court of Appeal. This request was dismissed on 10 April 2008. The court held that the evidence on file proved that the patients had been correctly and properly taken care of and that the responsible doctors performed as they could in the concrete circumstances and conditions at the PMH. No medical negligence was therefore discernible in the case, while the court also noted that the doctors did not have administrative tasks requiring them to properly organize the supply of medical services (“nefiind responsabili în legătură cu organizarea în bune condiţii a activităţilor de furnizare a serviciilor medicale”).
The court further held that the hospital management had applied for supplementary financial support, needed for supplying the hospital with food, medicine, fuel, but this request was never approved.
53. This decision was appealed against by the CLR, without invoking any specific reasons for their appeal. The High Court of Cassation and Justice dismissed the appeal on 7 November 2008, holding that the impugned decision was founded and correct.
D. Relevant domestic law
54. The relevant legal texts set out in the national legislation concerning the guardianship system, the social assistance and the health system, as well as the pertinent provisions prescribed in the Romanian Criminal Code and the Romanian Criminal Procedure Code are described in the case of Centre for Legal Resources on behalf of Valentin Câmpeanu v. Romania [GC], no. 47848/08, §§ 49-63, ECHR 2014.
E. Relevant reports and background information concerning the conditions at the PMH
55. Background information concerning the Poiana Mare Hospital, as well as pertinent reports issued by international bodies – the CPT and the UN Special Rapporteur on the Right to Health in respect of the PMH are detailed in the case of Centre for Legal Resources on behalf of Valentin Câmpeanu v. Romania, cited above, § 47 and §§ 74-78, respectively.
56. The CLR further submitted that there was a significant degree of difference between the standards of care and treatment available in the PMH compared to those available in medical establishments facilitating the general population.
It is submitted that the daily food allocation for a patient during January-February 2004 was at the PMH of only 33,084 ROL (approx. 0.82 Euro/day), which represented about 60% of the sum set by the law (namely the Government Decision no 296/2002).
At the beginning of 2004, the PMH only employed 299 staff, as opposed to 492 required by the law (namely the Order no 208/2003 by the Ministry of Health and Family). Only 11 doctors (5 psychiatrists and 6 GPs) worked at the PMH, which meant that the doctor/patient ratio was of one psychiatrist for 88 patients and one GP for 73 patients. This was vastly inferior to the ratio of one doctor for every 10-14 patients, as required by the above-mentioned Order. Many hospital wards were overcrowded, with patients having to share the same bed.
Furthermore, whereas the legislation in force provided that all social insurance holders had the right to “at least one preventive control every year, depending on the sex and the age group”, “aimed at tracing diseases which could have major consequences for morbidity and mortality”, patients at the hospital only benefited from one multidisciplinary consultation on admission to hospital. The hospital also experienced significant shortages of essential drugs, which were available as a matter of course in other medical establishments.
COMPLAINTS
The CLR on behalf of the applicants claims violations of Articles 2, 3, 13 and 14 of the Convention.
1. Under Article 2 it is alleged that the inadequate care and treatment, as well as the inappropriate, poor living conditions at the PMH directly contributed to the applicants’ untimely deaths.
In addition, in spite of their awareness about the high mortality rate at the PMH, the authorities failed to put in place an effective mechanism to safeguard the right to life of the applicants (including by initiating investigations of their 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 during their hospitalization at the PMH, the applicants were subjected to inhuman and degrading treatment, on account of several aspects, taken together or separately: their placement and continuing detention in the hospital in the lack of any legal basis; the existence of serious flaws in the applicants’ care and treatment as well as the poor living conditions at the Poiana Mare Hospital.
In addition, the official investigation into the allegations of
ill-treatment did not comply with the procedural obligation of the State under Article 3.
3. With respect to Article 13 taken in conjunction with Articles 2, 3 and 14, it is submitted that no effective remedy exists in the Romanian domestic legal order with respect to the violation of the applicants’ rights which occurred either during their lifetime or after they died.
4. With respect to Article 14 taken in conjunction with Articles 2 and 3 of the Convention, it is submitted that the applicants’ ill-treatment and their subsequent death, as well as the official investigation carried out in relation to these incidents, were heavily tainted b discrimination based on their social status and on their actual or perceived mental disability. The CLR invoked that the substandard conditions of care and treatment given to the applicants, the disproportionate and arbitrary control on the applicants’ freedom of movement and the lack of an individualized approach, all combined with the passivity of the authorities in respect of their situation, were due to a discriminatory attitude and treatment, based on the applicants’ social origin and mental disability.
QUESTIONS TO THE PARTIES
1. Does the Centre for Legal Resources have locus standi, as requested by Article 34 of the Convention, to file the present application on behalf of the five deceased applicants, given CLR’s claim that otherwise the application could not be pursued?
In the affirmative, does this standing extend to all the complaints raised in the application or only to those related to the circumstances surrounding their death or as limited by other criteria, and if so which?
2. Has the applicants’ 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 their 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. Have the deceased suffered discrimination in the enjoyment of their Convention rights on the ground of their social and medical condition, contrary to Article 14 of the Convention read in conjunction with Articles 2 and 3?
5. Did the applicants have at their disposal an effective domestic remedy for their complaints under Articles 2, 3 and 14, as required by Article 13 of the Convention?
The Government are invited to submit information concerning:
a) the guardianship procedures, if any, instituted in respect of the deceased applicants;
b) the investigation file regarding the death of the five applicants.
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