Aftanache v. Romania

Aftanache v. Romania, no. 999/19, ECHR 2020
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The applicant had Type-1 Diabetes and was insulin-dependent. On 30 March 2017, he was advised by his diabetologist to go to the pharmacy to purchase medicines because he was feeling ill. He explained his situation to the pharmacist, who called an ambulance to help him. The paramedic team that arrived refused to accompany him home to take his insulin treatment on suspicion that he had taken drugs, and instead insisted that they would only give him insulin after taking him to the hospital for a drug test. The applicant refused and was then restrained by the paramedics on a stretcher. The police were called, who also insisted that they accompany him to the municipal hospital. Upon arriving at the hospital, the doctor on duty refused to administer insulin to the applicant without first administering a blood test for prohibited drugs. The applicant refused to take the test. The doctor then determined that the applicant did not qualify for emergency treatment and sent him to the local psychiatric hospital. When the applicant finally accepted to be tested for drugs, he was taken back to the municipal hospital and the blood test confirmed that he had not taken any prohibited drugs. He was administered insulin, but in a dose different from his prescribed treatment.


On 4 April 2017 the applicant lodged a criminal complaint against the members of the ambulance team, alleging that they had put his life in danger by withholding medical treatment. On 18 April 2017, a police officer called the applicant and advised him to withdraw his complaint on the grounds that the acts allegedly committed did not constitute crimes and that the applicant would not be able to produce evidence to support his statements. The applicant refused, and on 16 May 2017 he was fined by the police for verbal abuse against the ambulance team. The District Court held that there was not sufficient evidence to support this allegation, and the fine was cancelled. The applicant subsequently filed a second complaint about the investigating officer’s behaviour. After interviewing the police officer and ambulance team involved in the incident, both of the applicant’s complaints were dismissed by the prosecutor’s office. The decision was upheld by the prosecutor-in-chief of the same office.


On 9 July 2018, the applicant lodged a complaint with the District Court against the decision of the prosecutor’s office, alleging that the prosecutor had failed to investigate the case properly because no relevant evidence had been collected and the decision had been based exclusively on the statements made by the persons under investigation. He also argued that the medical evidence provided by his diabetologist had been disregarded, even though it proved without doubt that his medical condition had precluded him from being violent with the paramedics of police at the time of the incident. The pre-trial judge of the District Court upheld the prosecutor’s decision. The Court of Appeal declared the applicant’s subsequent appeal inadmissible.

The Court held that there was a violation of Article 2 of the European Human Rights Convention. State authorities failed to conduct a proper investigation into the 30 March 2017 incident: the state only heard evidence from the members of the ambulance team and the applicant, and neglected to interview other key witnesses such as the applicant’s wife, his doctors, and the pharmacists. Moreover, the State failed to hear independent witnesses or consult expert medical evidence despite the importance of the applicant’s condition to the incident. There was no evidence to support the Government’s assertion that the doctors were unaware of the applicant’s medical condition, and even if there was, this would suggest professional misconduct by the doctors worthy of further investigation by the State. Thus, the State failed to meet the Article 2 procedural requirement of hosting an effective and independent judicial system to determine the cause of serious physical injury to a patient in the care of the medical profession. The Court declined to make a separate assessment of the admissibility and merits of the obligation to protect the applicant’s life, because “the gross deficiencies identified in the domestic investigation make it impossible to assess whether the State complied with its positive obligation to protect the applicant’s life.”

The Court held that the applicant was deprived of his liberty within the meaning of Article 5 §1. Case-law established that the taking of a person by the police to a psychiatric hospital against his or her will amounts to “deprivation of liberty,” and there was no evidence suggesting that the applicant could have freely decided not to accompany the paramedics and police officers to the hospitals or leave the hospitals without incurring adverse consequences. Furthermore, the Court held that this deprivation could not be justified under Article 5 §1(c) because it failed to both comply with domestic law and be free from arbitrariness. Though Romania’s domestic law permits individuals suspected of having committed a criminal act to be escorted to the police station if their identify cannot be verified, the evidence did not support the fact that the applicant refused to give his identity. The element of necessity with respect to the applicant’s confinement was also not satisfied, because there was no evidence that the presiding doctor considered the applicant’s medical circumstances or reasons for being agitated (refused treatment and falsely accused of drug use) before recommending admission to the psychiatric hospital.

“The Court notes that Article 2 of the Convention may come into play even though the person whose right to life was allegedly breached did not die.” (para 48)

“The Court has further held that an issue may arise under Article 2 where it is shown that the authorities of a Contracting State have put an individual’s life at risk through the denial of the health care which they have undertaken to make available to the population generally” (para 50)

“Given the nature of the applicant’s illness and the absence of any conclusive evidence submitted by the Government that his life had not been put in danger, the Court considers that the denial of treatment on 30 March 2017 caused a threat to his life serious enough to engage the State’s responsibility under Article 2” (para 53)

“The Court reiterates that it has interpreted the procedural obligation of Article 2 in the context of healthcare as requiring States to set up an effective and independent judicial system so that the cause of death or serious physical injury of patients in the care of the medical profession, whether in the public or the private sector, can be determined and those responsible held accountable.” (para 61)

“The Court considers that throughout the events there was an element of coercion which, notwithstanding the relatively short duration of the events, that is about six hours, was indicative of a deprivation of liberty within the meaning of Article 5 §1.” (para 82)

“[...] the Court reiterates that in order for deprivation of liberty under sub-paragraphs (b), (c), (d) and (e) of Article 5 to be considered free from arbitrariness, it does not suffice that this measure is executed in conformity with national law; it must also be necessary, in the circumstances, to achieve the stated aim” (para 91)

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