Panaitescu v. Romania

The son of the former applicant continued the application after his death. The applicant’s father was diagnosed with cancer in 2005 and had a surgery for removal of a tumour from his kidney. He was first suggested vitamins and saline solution. Later on, when he went to an oncology institute, he was recommended two drugs. He could not afford the medications and asked his health insurance to provide the drugs free of charge. He also approached many other institutions for assistance but he was unsuccessful in those attempts. Since he could not afford the medicines. He signed up for an experimental trial for a new drug every two months. The applicant’s father brought an action against the national health authorities stating that he should be provided those drugs for free and be reimbursed for already incurred expenses. The Romanian Courts held in favour of the applicant’s father. The health authorities contested the enforcement of that judgment stating that they could not provide the medicines, as they were not entitled to buy and sell medicines. They further asked for the enforcement of the judgment to be suspended till the contestation had been decided. The contestation was dismissed and the authorities submitted that pecuniary claims had become time-barred and the supply of medicines was not needed as the applicant’s father had passed away.

The applicant alleged that there had been a violation of Article 2 (right to life) and Article 3 (prohibition of inhuman and degrading treatment) stating that the refusal of the authorities to enforce the final decision of the court had caused deep mental suffering and finally caused his father’s death.

The Court held that there had been violation of Article 2 of the Convention as the State was not only prohibited from taking lives unlawfully but was also under an obligation to protect the lives of people. It was stated that as the applicant’s father was entitled to receive free medication under the relevant law and several courts had ruled on that right in the present case, the rights had been repeatedly contested by the health authorities. The delay in enforcement of the judgment delivered by the Domestic Courts led to a deterioration of the health of the applicant’s father. The Court further stated that the drugs had a positive effect on the health of the applicant’s father and the authorities were more than aware the kind of risk the applicant’s father can face if he is not given access to those drugs. The Court did not analyse Article 3 separately.

“In the instant case the complaint before the Court is that the national authorities did not do all that was expected of them, not only by the applicant, but also by the domestic courts (see paragraphs 13-14 above), who ordered them to provide the applicant with the necessary medication to treat the disease which finally led to his death.

The Court’s task is, therefore, to determine whether, given the circumstances of the case, the State did all that could have been required of it to prevent the applicant’s life from being avoidably put at risk by timely providing him with appropriate health care (see, mutatis mutandis, L.C.B., cited above, § 36). In its assessment of this issue, the Court considers that it must be guided by the due diligence test, since the State’s obligation in that respect is one of means, not of result. Notably, the mere fact of a deterioration of the applicant’s state of health, could not suffice, as such, for a finding of a violation of the State’s positive obligations under Articles 2 or 3 of the Convention, if, on the other hand, it can be established that the relevant domestic authorities have in timely fashion resorted to all reasonably possible medical measures in a conscientious effort to hinder development of the disease in question (see, mutatis mutandis, Aleksanyan v. Russia, no. 46468/06, § 139, 22 December 2008).” (Para 30)

“It follows that, in the present case the applicant’s access to free medical care, as he was entitled, was more than once hindered, as he needed to make constant and repeated efforts to be granted the requisite anticancerous medical treatment free of charge. For a while, he bore the cost of the treatment, despite the final judgments conferring on him the right to be granted the prescribed medicines free of charge and with priority.

The delayed and partial enforcement of the judgment of 12 December 2005 ordering the State authorities to grant him free of charge the drugs recommended by his doctors coincided with a deterioration in his health, especially once the applicant could no longer afford to bear the cost of the treatment personally. This deterioration culminated in the death of the applicant, on 3 December 2006.” (Paragraph 32)