The ECHR found a violation of the requirements of article 5, paragraph 1, and article 2 of the Convention for the protection of human rights and fundamental freedoms.

Заголовок: The ECHR found a violation of the requirements of article 5, paragraph 1, and article 2 of the Convention fo Сведения: 2020-12-05 05:36:44

ECHR decision of 26 may 2020 in the case "Aftanache v. Romania" (aplication N 999/19).

In 2019, the applicant was assisted in preparing the aplication. The aplication was subsequently communicated to Romania.

The case successfully considered an aplication about the failure to conduct a proper investigation into the refusal of medical workers to provide insulin to a diabetic patient who was in a serious condition, as well as the applicant's deprivation of liberty had signs of arbitrariness and did not meet the requirements of Romanian law. The case violated the requirements of article 5, paragraph 1, and article 2 of the Convention for the protection of human rights and fundamental freedoms.




On 30 March 2017, the applicant, who had type 2 diabetes and had been insulin-dependent since 1996, went to a pharmacy to buy medicine prescribed by his diabetic doctor. At the pharmacy, he had to sit down because he felt weak. An ambulance arrived and the applicant informed the doctors of his medical condition. A blood test carried out in the ambulance confirmed that the applicant had a violation of the percentage of glucose in the blood. However, the doctors of the ambulance team, as well as the municipal and psychiatric hospitals where the applicant was taken against his will with the help of police officers, refused to provide the applicant with insulin, despite his serious condition. The medical staff suspected that the applicant was a drug addict.

The applicant claimed that his life had been put in danger in violation of article 2 of the Convention and that he had been unlawfully restricted in his freedom of movement and placed in a hospital in violation of article 5, paragraph 1, of the Convention.




Regarding compliance with article 2 of the Convention (procedural and legal aspect). (a) Eligibility. Given the small amount of evidence available, the court was unable to draw conclusions as to the specific consequences for the applicant of the delay in providing medical care with the use of insulin on 30 March 2017, or as to whether the applicant's own conduct, namely his refusal to take a drug test, caused the disputed situation to arise. However, very high blood sugar levels can lead to diabetic ketoacidosis , a life-threatening medical condition that requires hospital treatment. Moreover, this condition, which is usually triggered by infections, can develop very quickly, within a few hours. The applicant had previously been in a diabetic coma. In view of the nature of the applicant's illness and the absence by the Romanian authorities of any convincing evidence that the applicant's life was not in danger, medical treatment was refused on 30 March 2017. caused a sufficiently serious threat to the applicant's life for the Romanian authorities to have an obligation under article 2 of the Convention.

(b) the Substance of the complaint. The Prosecutor heard the statements of only four doctors of the ambulance team and the applicant. No independent witnesses were questioned. The investigators did not question the other persons involved in the incident: a pharmacy employee, police officers, the applicant's wife, the applicant's doctor, C. H., and medical staff at the two hospitals where the applicant was taken against his will. Moreover, statements made outside the court proceedings by the applicant's attending physician, C. H., were not taken into account by either the Prosecutor or the court.

Although the applicant's state of health was a key element in the incident, the Prosecutor did not request a forensic medical examination. In particular, several factors should have indicated to the investigators the need for further information. The applicant's treatment was postponed only because there was a suspicion that the applicant might have used drugs. The first analysis carried out by the ambulance team already showed a violation of the applicant's blood sugar level. Moreover, the medical staff was duly notified that the applicant had diabetes and needed insulin, and none of the doctors who examined the applicant on the specified day denied this fact. In the materials submitted by the Romanian authorities, there was no evidence to support the claim that the doctors were unaware of the applicant's state of health. However, if this were the case, such inaction on the part of the medical staff, for which the applicant could not be held responsible, would constitute an admission of improper performance of professional duties that could endanger the applicant's life. At the very least, these facts should have led to a more thorough investigation by the Romanian authorities.

In addition, the district court, which was supposed to consider the Prosecutor's decision, simply left it unchanged, based on the evidence already available in the case and did not take the opportunity to Supplement the investigation materials or ask the Prosecutor's office to do so.

In view of these shortcomings, the court finds that the Romanian authorities did not conduct a proper investigation into the incident that took place on 30 March 2017. These violations made it impossible to assess whether the Romanian authorities had fulfilled their positive obligation to protect the applicant's life.




The case involved a violation of the requirements of article 2 of the Convention in its procedural and legal aspect (adopted unanimously).

regarding compliance with paragraph 1 of article 5 of the Convention. Despite the relatively short duration of the incident, approximately six hours, the element of coercion that existed throughout the events indicated deprivation of liberty. The Romanian authorities did not provide any legal grounds for the applicant's deprivation of liberty. The applicant duly submitted his complaints to the domestic authorities, but did not receive a response from them.

The applicant's deprivation of liberty could have been attributed to various reasons. First, with regard to the grounds listed in article 5, paragraph 1 (c), of the Convention, under domestic law, a person suspected of committing a crime could be taken to a police station if his or her identity could not be established. However, nothing in the decisions of the Romanian authorities in the present case gave the European court of Justice reason to believe that the applicant would have refused to disclose his personal data. The police did not ask the applicant to produce identification documents. Moreover, no legal action was taken in this regard. The district court rejected the allegations that the applicant had made offensive and aggressive statements to police officers and medical professionals as unfounded. Consequently, the applicant's deprivation of liberty could not be attributed to this reason.

With regard to the grounds referred to in article 5, paragraph 1 (e), of the Convention, under domestic law, police officers or doctors could request that a person be forcibly placed in a psychiatric hospital. However, in the present case, there does not appear to have been any such formal request. In any case, as far as the need for this measure is concerned, the first blood test confirming the applicant's high blood sugar level has already been performed by the doctors of the ambulance team. Moreover, the applicant informed the doctor on duty about his condition when he was admitted to the municipal hospital. The applicant was not registered with a psychiatrist, and the Romanian courts found that the applicant had not been aggressive during the incident.

The applicant, faced with a refusal to provide him with treatment that he considered vital for himself, could refuse to cooperate, and he was falsely accused of drug use and threatened with placement in a psychiatric institution. Throughout this time, he suffered from impaired blood sugar levels. In these circumstances, the applicant's state of discomfort and irritability was understandable. However, there was no evidence that the medical staff would have considered the applicant's personal situation and possible reasons for his behavior before recommending his placement in a psychiatric hospital. Consequently, the alleged irritability of the applicant could not serve as a sufficient basis for justifying the restriction of his freedom.

Thus, the applicant's deprivation of liberty on 30 March 2017 showed signs of arbitrariness and did not comply with the requirements of Romanian law. Consequently, it did not fall under any of the exceptional circumstances set out in article 5 (1) (a) to (f) of the Convention, nor was it "lawful" within the meaning of the Convention provision.




The case violated the requirements of article 5, paragraph 1, of the Convention (adopted unanimously).




In the application of article 41 of the Convention. The European Court awarded the applicant EUR 12,000 in respect of non-pecuniary damage, but the claim for pecuniary damage was rejected.



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