Published on 4 May 2026
FIFTH SECTION
Application no. 37789/20
Ludmila DARABAN
against the Republic of Moldova
lodged on 18 August 2020
communicated on 16 April 2026
SUBJECT MATTER OF THE CASE
The application concerns the alleged deficient response of the domestic authorities to a case of alleged medical negligence, which resulted in the dysfunction and subsequent removal of the applicant’s right kidney.
In particular, on 25 January 2012 the applicant gave birth to her daughter. Due to complications during the birth, she had a total hysterectomy two days later (the removal of the uterus and cervix).
Less than a month later, in February 2012, she consulted doctors for acute pain in her right kidney. It was found that the kidney was dysfunctional and she was prescribed diuretics (medication to help the body remove excess fluid). She returned a month later as her condition had not improved. In March 2012 the doctors performed a nephrostomy (a procedure to drain the urine) and made a follow-up appointment for two months later. In May 2012 the doctors unsuccessfully attempted to connect the right ureter to the kidney. On 2 July 2012 the applicant’s right kidney was removed.
The applicant submitted a criminal complaint concerning the medical negligence committed by doctors who had assisted her birth, who carried out the hysterectomy and who provided medical assistance for her kidney condition. A criminal investigation was initiated on 19 July 2012. The prosecutor sought an expert opinion from the Mina Minovici Romanian National Forensic Institute. The expert opinion, issued on 25 February 2015, found that several distinct medical errors had been committed. These included the failure to perform a C-section which resulted in secondary bleeding and required a hysterectomy; the negligent suturing of the right ureter during the hysterectomy, which caused improper kidney drainage; the failure to diagnose and treat the resulting kidney dysfunction, which eventually led to the kidney being removed.
The criminal case was subsequently divided into three separate investigations concerning each group of doctors. In the investigation concerning the doctors responsible for the treatment of the kidney dysfunction, the prosecutor requested a second medical opinion from the experts at the Moldovan Centre for Forensic Medicine. On 28 May 2019 the forensic report was issued with the conclusion that the assessment of the Romanian experts had been flawed because it had not relied on Moldovan law and that, in fact, no medical error had been committed by the said doctors. According to the applicant, she was not informed about the second medical report.
Relying on the Moldovan forensic report, on 26 July 2019 the prosecutor discontinued the investigation in respect of the doctors responsible for the treatment of the kidney dysfunction, for lack of elements of a criminal offence. The applicant appealed against this decision, to no avail. On 10 December 2019 and on 19 February 2020 the investigating judge and the Chișinău Court of Appeal respectively dismissed the applicant’s appeals and upheld the prosecutor’s decision reiterating the conclusions of the Moldovan forensic report.
The applicant relies on Articles 6, 8 and 13 of the Convention and complains about the deficient investigation into the acts of alleged medical negligence, including its reliance on a forensic report without any reasons to be provided for ignoring another forensic report, its excessive length and its effect on barring any civil remedy for malpractice.
QUESTIONS TO THE PARTIES
1. Has the applicant exhausted all effective domestic remedies, as required by Article 35 § 1 of the Convention? In particular, was the criminal complaint an effective remedy within the meaning of this provision in respect of the applicant’s complaint of medical negligence (see Lopes de Sousa Fernandes v. Portugal [GC], no. 56080/13, § 215, 19 December 2017)?
2. Has there been a violation of the applicant’s right to respect for her private life, contrary to Article 8 of the Convention? In particular:
- Did the applicant have access to a procedure capable of establishing the relevant facts, holding accountable those at fault and providing her with appropriate redress (see Mehmet Ulusoy and Others v. Turkey, no. 54969/09, §§ 90-93, 25 June 2019; Botoyan v. Armenia, no. 5766/17, §§ 90-92, 106-09, 8 February 2022)?
- In particular, having regard to the procedural protection of the right to private life, were the proceedings lodged by the applicant effective in terms of enabling her to participate in them effectively, and of being thorough, prompt and concluded within a reasonable time (see Lopes de Sousa Fernandes v. Portugal , cited above, §§ 214-21; Erdinç Kurt and Others v. Turkey, no. 50772/11, §§ 51, 54‑55, 6 June 2017; Mehmet Ulusoy and Others v. Turkey, no. 54969/09, §§ 82, 86 and 90‑93, 25 June 2019; Vilela and Others v. Portugal, no. 63687/14, §§ 76‑79, 23 February 2021)?