Practical recommendations

Pro-bono consultations in the framework of the “Bringing Human Rights to Patients and Health Care Providers” Project

Case №1

Negligence in the delivery of health care is subject to criminal liability if it causes severe bodily injury or severe damage to the health or leads to the death of the patient

The newborn daughter of the spouses H. died 7 days after birth due to a natural birth, which was contraindicated because pelvic presentation with the loops of the umbilical cord in the lower uterine area was found at the fetus during the pregnancy.

Being 40 weeks and 4 days pregnant, the mother has learned following the obstetrical ultrasound examination and examination by the gynecologist obstetrician doctor E.C. that the fetus was diagnosed in the inverted position (known as “breech presentation” in obstetrics) with the loops of the umbilical cord in the lower uterine (pathology of the umbilical cord with compression risk during childbirth).

In connection with this diagnosis the impossibility of natural birth and the necessity of caesarean were stated, as such a diagnosis presents an increased risk of fetal asphyxia during birth.

The obstetricians from the local medical institution have been informed about these medical indications. On 3 October 2015 M.H. hurt abdominal pain, for which she went to the local maternity. The obstetrician A. examined the patient and explained her that those pains are not “birth pains” so she can return home.

On 4 October 2015, after hurting acute pain, M. H. went to the local maternity. In the maternity section she was examined by the obstetrician M. The patient explained that she cannot give birth in a natural way and she requires caesarean.

The doctor M. reproached that she “will not be the first person” giving birth in a natural way with that diagnosis. In addition, she was informed that in the maternity there are no obstetricians able to perform the cesarean and the ambulance to be transported to the hospital in Balti is not available.

Thus, M.H. was forced to give birth to the child R.H. naturally.

The baby was born in a state of asphyxia. Subsequently, the child was resuscitated and transported for medical care to the Chisinau based Mother and Child Center. At the Center the child has received medical care for resuscitation. The clinical diagnosis consisted of perinatal hypoxic-ischemic encephalopathy (PHIE), which is a neuro-vascular syndrome caused by a deficiency of oxygen and glucose intake to the brain, a typical perinatal pathology that occurs as a result of asphyxia.

On 11 October 2015 the child died due to PHIE.

What is the legal procedure to establish the responsibility of the medical staff from PHCF Glodeni related to not granting appropriate medical care to the child R.H., which caused her death?

The medical institution is to be considered as health care provider, as defined in the Law no 263 of 27.10.2005 "On the rights and responsibilities of the patients" - health care and pharmaceutical institutions, regardless of type of ownership and organizational form, doctors, other experts in the field of medicine, and other natural and legal entities who have the right to engage in certain types of medical and pharmaceutical activity.

In the circumstances of the case, as submitted by the beneficiary – the proper medical care was not provided, thus causing the decease of the beneficiary’s newborn child. Consequently, there are grounds for alleging violations of the right to health care.

The medical staff of the medical institution shall be liable in accordance with the law for any professional incompetence and improper fulfilment of their professional duties (Law no 411 of 28.03.1995 "On Health Care").

Criminal liability of medical staff is provided in Article 213 of the Criminal Code, according to which negligence of a doctor or other medical staff in breach of rules or methods of medical care, resulting in: a) the infliction of serious bodily injury or causing other serious harm to health; b) the death of the patient, shall be punished with imprisonment up to 3 years with or without the deprivation of the right to hold certain positions or engage in certain activities for a period of 2 to 5 years.

Within the criminal proceedings, the beneficiary is entitled to bring a civil action for the recovery of any pecuniary and non-pecuniary damage suffered as a consequence of the crime, i.e. poor quality of medical care.

In parallel to criminal proceedings, or in case of impossibility to prove within criminal proceedings the fact of doctor’s or other medical staff negligence in breach of rules or methods of medical care, the beneficiary may initiate a civil lawsuit against the medical institution claiming for the recovery of pecuniary and non-pecuniary damage caused as a result of poor quality of medical care, according to the general rules of tort liability.

According to Article 1398 of the Civil Code, an individual that acts wrongfully in relation to another person, is obliged to compensate the occurred pecuniary and non-pecuniary damage, according to law.

In this context, it is to be noted that, in accordance with Article 280 of the Civil Code, the statute of limitations does not apply to claims for compensation for damage caused to life or health of the individual. In this case, the damage shall be compensated for the period preceding the filing of the claim, but not more than for the last three years.

Also, the beneficiary should file a complaint with the police as regarding the medical staff negligence, on grounds of Article 213 of the Criminal Code. The state authorities (prosecution service and police) have to ensure carrying out of a prompt, complete and fair criminal prosecution. An eventual refuse to open a criminal case should be appealed under Article 299/1 of the Criminal Procedure Code.

Depending on the stage of the criminal investigation, the legal remedies suppose the following steps:

In accordance with Article 299/1 of the Criminal Procedure Code, the victim, civil plaintiff and their representatives, as well as other persons whose rights and legitimate interests have been infringed by the prosecution, may file a complaint against the actions, omissions and acts committed or sanctioned by the prosecutor, leading the criminal prosecution or carrying it out.

The complaint has to be filed within 15 days from the complained action, omission and act or from the day of notification. The complaint must be lodged either to the higher-level prosecutor, or to the prosecutor, leading the criminal prosecution or carrying it out. If the complaint is filed with the latter, he is obliged to submit it to the higher-level prosecutor in 48 hours, together with his explanations if needed.

The higher-level prosecutor’s ordinance as regarding the complaint may be appealed to the investigative judge.

According to Article 313 of the Criminal Procedure Code, complaints about the actions and illegal acts of a criminal investigative body or of the body performing operative investigative activities may be filed with the investigative judge by the suspect/accused, the defence counsel, the injured party, other participants in the proceeding or other persons whose legal rights and interests were violated by these bodies provided that the person filing the complaint disagrees with the result of an examination of his/her complaint by the prosecutor or did not get a response to his/her complaint from the prosecutor within the timeframe provided by law.

The ruling of the investigative judge shall be irrevocable, excepting the rulings on refusal to initiate a criminal investigation, discharging a person from a criminal investigation, terminating criminal investigations, dismissing a criminal case and reopening of criminal investigations, which can be appealed to the court of appeal within 15 days from its pronouncement.

It should be noted that in the case it is possible to appeal to the European Court of Human Rights, concerning violation of Article 2 of the Convention for the Protection of Human Rights and Fundamental Freedoms (also known as the European Convention on Human Rights, adopted in Rome, November 4, 1950) - effective investigation of the decease causes (see for example the case of Ghimp and Others v. the Republic of Moldova, no. 32520/09, 30 October 2012).

It should be noted also that, in principle, the application is to be sent to the European Court of Human Rights only after the exhaustion of domestic remedies that is after the court of appeal endorses the prosecutor’s ordinance as regarding refusal to initiate a criminal investigation, terminating criminal investigations or dismissing a criminal case. The application must be lodged within 6 months from the court of appeal decision.

However, if the investigation is unreasonably prolonged, and is manifestly inefficient and incomplete, the applicant is exempted from the requirement of exhaustion of domestic remedies, that means he or she is entitled to file the application even until the exhaustion of domestic procedures (see for example the case of Timus and Tarus v. the Republic of Moldova, no. 70077/11, 15 October 2013).

If the victim decided to defend rights through civil action for the recovery of pecuniary and non-pecuniary damage, then the period of 6 months for lodging the complaint with the European Court of Human Rights shall be calculated from the date the judgment of the Supreme Court of Justice is issued.

According to Article 41 of the European Convention, if the Court finds that there has been a violation of the Convention or the Protocols thereto, and if the internal law of the High Contracting Party concerned allows only partial compensation, the Court shall, if necessary, afford just satisfaction to the injured party. The just satisfaction is a consequence of a violation by the State of its international obligations assumed under the Convention, and flows from the principle of restitutio in integrum, that is, a demand to recover as far as possible the victim’s situation, in which it was before the violation. Usually, if the victim so requires, the Court awards monetary compensation.

Conclusion

The elements of this case show that the regional PHCFs of Moldova do not ensure medical conditions required for births by caesarean section. Such an approach by the state is a violation of a positive obligation to protect the right to life.

The victim's family was informed about the legal procedures related to the initiation of a criminal case:

Requesting information from the medical file (patient's perinatal book);
Submitting a criminal complaint to the Glodeni Police Inspectorate;
Submitting a request to the Ministry of Health on performing an expert appraisal and an internal investigation;
Presentation at police to make statements;
Obtaining the status of injured party in the trial;
Filing a civil action in the criminal case.

Case №2

The State has a margin of appreciation when determining the conditions for social aid

The victim R.M. is a person from a socially vulnerable family. His family consists of 2 members. His mother has a locomotory disability with degree of disability and receives a derisory pension. R.M. is not receiving the social aid provided by the Government Decision no. 1167 of 16.10.2008 any more on the ground that he reached the age of 23.

According to Article 9 of the Law no. 499 of 14.07.1999 on state social benefits for certain categories of citizens, the child allowance in case of loss of breadwinner shall be granted to persons aged under 18 (students of secondary, secondary specialized and higher educational institutions, except part-time learning - until the graduation of the educational institution concerned, but no longer than the age of 23) if they are not fully supported by the state.

Considering that the relevant legislation makes discrimination based on age and occupational status, the victim R.M. has received legal assistance from Human Rights Embassy team of experts. The latter has been sent to the Council on the Prevention and Elimination of Discrimination and Ensuring Equality.

In its turn, the Council expressed its opinion on the alleged discrimination based on age and occupational status, provided for by paragraph 1 of the Government Decision no. 1167 of 16.10.2008 on approving the Regulation on the setting and payment of social aid, namely the definition of “child”, that under Article 1 of the Convention on the Rights of the Child, adopted by the General Assembly of the United Nations on 20 November 1989, "child" means every human being below the age of eighteen years unless under the law applicable to the child, majority is attained earlier.

At the same time, according to Art. 1.e) of the ILO Convention no. 102/1952 concerning the Minimum Standards of Social Security, “child” means a child under school-leaving age or under the age of 15 years. Moreover, each state may establish individually the maximum age up to which a person is considered a child.

The Republic of Moldova has stated by several legislative acts (Art. 25 para. (1) of the Law no. 156 of 14.10.1998 on state Social Insurance Pensions, Art. 9 para. (2) of the Law no. 499 of 14.07.1999 on State Social Benefits for Certain Categories of Citizens, Art. 7 of the Law no. 909 of 30.01.1992 on the Social Protection of Citizens Victims of the Chernobyl Disaster etc.) that any individual can be considered as a child under the age of 18, and if he/she continues his/her full-time studies, until graduation, but no longer than until the age of 23.

Thus, the Council has examined the definition of “child” in the Government Decision no. 1167 of 16.10.2008 in terms of direct discrimination by applying the comparability test:

1) less favourable treatment compared to a person or group of persons;

2) in comparison to another person or group of persons;

3) being in similar situation; and

4) the protected criterion.

In this regard, the notion of “child” as provided by para. 1 of the Government Decision no. 1167 of 16.10.2008 on approving the Regulation on the setting and payment of social aid, which assumes that child is any person under the age of 18, and if he/she continues his/her full-time studies, until graduation, but no longer than until the age of 23, treats differentially the persons who have reached the age of 18, but did not reach the age of 23 and study full-time in education institutions, compared to persons who do not study full-time in educations institutions, as well as the persons who study full-time in education institutions and have not reached the age of 23 compared to persons who study full-time in education institutions but are older than 23 years. The protected criterion in the case of differential treatment would be the occupational status, namely the quality of student in full-time study and the age above 23 years.

When examining the regulatory act, the Council has asked the view of the Ministry of Labour, Social Protection and Family, which stated that “granting social aid until the age of 23 widens the circle of families benefiting from social aid, because if it was to be left the age of 18, people who continue their studies could not obtain an employment status such as employed or unemployed registered with the territorial employment agency and thus their families would not be entitled to the right to benefits”.

The Council has retained the argument submitted by the Ministry of Labour, Social Protection and Family and finds that people aged between 18 and 23 who do not study full-time in education institutions may have the status either of unemployed or employed. If their status is unemployed, they may receive unemployment benefit and also social aid, according to p. 3 c) of the Government Decision no. 1167 of 16.10.2008 on approving the Regulation on the setting and payment of social aid. If their status is employed, they may receive social aid, according to p. 3 f) of the Government Decision no. 1167 of 16.10.2008 on approving the Regulation on the setting and payment of social aid.

As for the alleged discrimination on grounds of age, the Council noted that the term "child" cannot cover any person regardless of age, but who studies full-time, since it is primarily about the child - a human being under the age of 18 - and secondly, there is no age limit to study full-time in education institutions. In these circumstances, the Council noted that Moldova as a state has increased the age margin until which a person is considered a child, in order to provide support for disadvantaged families.

In these circumstances, the Council believes that the term "child" as set out in p. 1 of the Government Decision no. 1197 of 16.10.2008 has no discriminatory nature.

Case №3

The importance of the right to freedom implies effective judicial review of the legality of involuntary hospitalization in a psychiatric hospital of people with intellectual disabilities or mental health problems

In 2015 the beneficiary was placed against her will in a psychiatric hospital. She was held in psychiatric hospitalization without her consent, based on the judgment issued by the court in appeal points of law procedure. The beneficiary alleges that while in the psychiatric hospital she was abused by the medical staff.

Victim’s questions to the experts:

Is the court decision to hospitalization in a psychiatric hospital without the voluntary consent of the person legal?

Can there be engaged the responsibility of the psychiatric hospital medical staff on the fact of violence? What are the legal remedies?

Is it possible to apply to the European Court of Human Rights (ECHR) on the illegal placement in a psychiatric hospital without beneficiary’s voluntary consent?

Is the court decision to hospitalization in a psychiatric hospital without the voluntary consent of the person legal?

Clinical Psychiatric Hospital appealed to the court – the Court of the Centru District of the Chisinau mun. on the basis of Art. 312-317 of the Civil Procedure Code, Art. 28 of the Law № 1402 of 16.12.1997 on mental health, requesting hospitalization in a psychiatric hospital without the voluntary consent of the beneficiary or his/her legal representative.

According to Art. 313 of the Civil Procedure Code, the basis for psychiatric examination without the voluntary consent of the person or his/her legal representative is - a written opinion of a psychiatrist and, if necessary, - other materials, including a petition to the psychiatrist's name on behalf of the family or any doctor, officials or other persons justifying the need for such a survey. In the request for the person’s hospitalization in a psychiatric hospital without the voluntary consent of the person or his/her legal representative should be outlined the reason for hospitalization and circumstances proving inadequate behaviour of the person. A reasoned opinion of the committee of psychiatrists on the necessity of further holding of the person in a psychiatric hospital should be attached to the application.

According to Art. 28 of the Law №1402 of 16.12.1997 on Mental Health a person suffering from a mental disorder can be hospitalized in a psychiatric hospital without his consent or without the consent of his legal representative until the court’s order, if examination or treatment is possible only in stationary conditions and mental illness is severe and causes: a) his/her direct social danger; c) significant damage to his/her own health, if psychiatric care would not be provided.

According to Art. 29 of the Law №1402 from 16.12.1997 on Mental Health, inpatient psychiatric care is provided in a minimum of restrictive conditions that ensure the safety of the hospitalized person and other persons, with respect to the rights and legitimate interests of the hospitalized person from the part of the medical staff. Measures of physical restraint and isolation during involuntary hospitalization and stay in a psychiatric hospital are applied only in cases, forms and for a period when, in the opinion of a psychiatrist, other methods cannot prevent the actions of hospitalized persons presenting an immediate danger to themselves or to others. These measures are carried out under the constant supervision of medical staff. Forms and duration of application of physical restraint or seclusion has to be recorded in the medical records. The police officers are obliged to assist medical professionals in the exercise of involuntary hospitalization and to provide safe conditions for access to the hospitalized person and his/her inspection, as well as to take measures to comply with the property interests of the latter. In the case of the need to avoid actions that threaten the lives and health of others from the hospitalized person, and if necessary, while seeking and apprehension of the person to be hospitalized, on the basis of a medical report orally and in writing, police officers act in the manner prescribed by the Police Act.

Therefore, a compulsory hospitalization may be considered as lawful only in the case of a person suffering from a mental disorder, and only when it constitutes a direct social danger or serious harm to health of the person, in the absence of mental health care.

Can there be engaged the responsibility of the psychiatric hospital medical staff on the fact of violence? What are the legal remedies?

The beneficiary may protect/remedy his rights by lodging a complaint to the police on the facts of violence from the part of medical staff of the psychiatric hospital. Depending on the facts, there may be initiated a criminal case on abuse of power or abuse of official position (Article 327 of the Criminal Code), excess of power or excess of official authority (Article 328 of the Criminal Code), or in case of exceeding the minimum threshold of severity also on the facts of torture, inhuman or degrading treatment (Article 1661 of the Criminal Code).

Another remedy for their violated rights is to file a complaint to the disciplinary committee of the Municipal Centre of Health and the Ministry of Health.

According to Article 1 of the Law no 263 of 27.10.2005 "On the rights and responsibilities of the patients", the definition of the patient (the consumer of medical services) means a person in need of medical services, receiving or asking for them, regardless of his or her health state or voluntarily participating as a subject in biomedical researches. This definition also applies to persons detained in medical institutions of Republic of Moldova. Consequently, all the rights granted to patients, are also ensured to patients detained in the psychiatric stationaries, according to this Law and other special laws governing the procedure for the provision of medical care in the respective institutions.

Consequently, psychiatric institutions are also considered as health care providers, as defined in the Law no 263 of 27.10.2005 "On the rights and responsibilities of the patients" - health care and pharmaceutical institutions, regardless of type of ownership and organizational form, doctors, other experts in the field of medicine, and other natural and legal entities who have the right to engage in certain types of medical and pharmaceutical activity.

The medical staff shall be liable in accordance with the law for any professional incompetence and improper fulfilment of their professional duties (Law no 411 of 28.03.1995 "On Health Care").

Within the criminal proceedings, the beneficiaries are entitled to bring a civil action for the recovery of any pecuniary and non-pecuniary damage suffered as a consequence of the crime, i.e., poor quality of medical care.

In parallel to criminal proceedings, or in case of impossibility to prove within criminal proceedings the fact of doctor’s or other medical staff negligence in breach of rules or methods of medical care, beneficiaries may initiate a civil lawsuit against the respective state authority (i.e. Ministry of Justice, Department of Penitentiary Institutions) claiming for the recovery of pecuniary and non-pecuniary damage caused as a result of poor quality of medical care, according to the general rules of tort liability.

Is it possible to apply to the ECHR on the illegal placement in a psychiatric hospital without beneficiary’s voluntary consent?

Article 5 §1 е) (Right to liberty and security) of the Convention for the Protection of Human Rights and Fundamental Freedoms (also known as the European Convention on Human Rights, adopted in Rome, November 4, 1950) provides that:

«Everyone has the right to liberty and security of person. No one shall be deprived of his liberty save in the following cases and in accordance with a procedure prescribed by law …

(e) the lawful detention of persons for the prevention of the spreading of infectious diseases, of persons of unsound mind»

According to the European Court’s case-law, these are the conditions for the forced detention under the Article 5 §1 е) of the European Convention:

a) the individual must be reliably shown, by objective medical expertise, to be of unsound mind, unless emergency detention is required.

b) the individual’s mental disorder must be of a kind to warrant compulsory confinement. The deprivation of liberty must be shown to have been necessary in the circumstances, to protect the public order, as well as the protection of the individual himself[1];

c) the mental disorder, verified by objective medical evidence, must persist throughout the period of detention.[2]

Please note that, in principle, the application is to be sent to the European Court of Human Rights only after the exhaustion of domestic remedies that is after the Supreme Court endorses the lower courts’ decisions. The application must be lodged within 6 months from the final decision in the case.

Case №4

State has accountability for illegally holding criminally liable a person

The beneficiary M.N. works as a judicial and forensic expert at the Forensic Medicine Centre and there was a criminal investigation initiated against him under Art. 312 para. (1) of the Criminal Code for conclusions in the forensic examination conducted in the context of a criminal case.

In 2015 the beneficiary was confirmed as a suspect in a criminal case initiated under Art. 312 para. (1) of the Criminal Code, which provides that a deliberate false statement by a witness or the injured party or a false expert conclusion by a specialist or expert or an incorrect translation or interpretation by a translator or the interpreter provided that such an action was committed in the course of a criminal investigation or case hearing shall be punished by a fine of up to 300 conventional units or by community service for 180 to 240 hours or by imprisonment for up to 2 years, in all cases with (or without) the deprivation of the right to hold certain positions or to practice certain activities for up to 2 years.

The beneficiary was recognized as a suspect based on the fact that, as a judicial and forensic expert in the experts’ commission, he has issued a forensic conclusion that provided several findings different from the previous conclusion drawn in the same case.

Later the beneficiary was removed from criminal prosecution, and the case - ceased.

The project expert has been asked the question on the possibility and conditions to hold accountable the state for illegally holding criminally liable the forensic worker. What are the ways to protect his rights in this case?

In accordance with Art. 22 of the Law No. 1086-XIV of 23.06.2000 on Judicial Expertise and Technical-Scientific and Forensic Findings, the expert review report is appreciated, according to the procedural law, in terms of its accuracy, objectivity and completeness of research and the efficiency and the fundamental character of the research methods used in the expertise. Expert conclusions are not binding on the court, the prosecutor and the criminal investigation officer, but their rejection shall be substantiated.

If there is any doubt about the expert’s objectivity and professionalism, the law provides for a mechanism to prevent those breaches, namely: under Art. 18 of the Law No. 1086-XIV of 23.06.2000, where the expert conclusions do not raise doubts, but are insufficiently clear or incomplete or an incomplete research has led to additional questions that are important to establish the truth, it shall be ordered a supplementary expert review by the same or another expert. If the expert conclusions are not substantiated or there are doubts about the veracity, accuracy and arguments thereof, or if there are contradictions between the conclusions of several experts, it shall be ordered a repeated expert review by another expert (other experts). The expert who performed the first expert review may participate in the carrying out of the repeated expert review. In this case, the number of experts must be not less than three. If the conclusions of the repeated expert review do not correspond to the conclusions of the first expert review, the expert must indicate the reasons for such discrepancy in the expert review report. If an additional or repeated expert review is ordered, the reasons for this must be stated. When ordering a repeated expert review one must submit the first expert review report or the minutes on the impossibility of drawing it and all supplemental materials available to the body authorizing the judicial expertise.

Art. 148 of the Code of Criminal Procedure provide similar procedure actions.[3]

To restore the rights the beneficiary M.N. was explained the right to submit a writ of summons on compensation for damage under the Law No. 1545-XIII of 25.02.1998 on the Way of Repairing Damages Caused by Unlawful Actions of the Criminal Investigation, Prosecution and Courts of Law, which regulates the cases, the manner and the conditions for pecuniary liability of the State for damage caused by the illegal actions committed in criminal and contravention cases by criminal prosecution bodies, prosecutors and law courts.

Under Art. 3 para. a) of the Law No. 1545-XIII of 25.02.1998, is repairable the pecuniary and moral damage caused to any natural or legal person due to illegal detention, illegal arrest as preventive measure, the order not to leave town or country, illegally holding criminally liable.

Under the Law No. 1545-XIII of 25.02.1998, the right to compensation in the amount and manner established by this law is applicable in case of removal from criminal prosecution or termination of criminal prosecution on the ground of rehabilitation (Art. 6 para. b)). In this case, under Art. 7 of the Law No. 1545-XIII of 25.02.1998, the beneficiary may request compensation for:

wage and other income from employment, which constitute his main source of existence, of which he was deprived by the illegal actions;
expenses for the treatment of the individual related to the application of unlawful actions (maltreatment); and
expenses incurred in connection with summons to the criminal prosecution body, the prosecutors or the law court.

Therefore, M.N. is entitled to compensation for moral damages in the amount and manner prescribed by law. The amount of compensation for damages shall be determined by the court in the manner prescribed by law, taking into account the specific circumstances of the case.

The case concerning the compensation for material and moral damages shall be examined by the court in accordance with the rules of civil procedure in force. The body that represents the state in court for this type of case is the Ministry of Justice. The writ of summons on compensation for damage shall be filed within 3 years from the date when the right to compensation for damage emerged.

Case №5

Poor state of health of the prisoner in pre-trial arrest may be a serious argument for his release or for the change of the measure of restraint

While in detention, the beneficiary has been infected with tuberculosis and his condition worsens. Also, it should be noted that the beneficiary was placed under pre-trial arrest after a surgery on the stomach. The beneficiary was not ensured with due post-surgery medical care.

Beneficiary’s questions to the experts:

Is it possible to be released from pre-trial arrest or to have changed the measure of restraint to a noncustodial one, due to a severe disease, and to benefit from medical care while at liberty?

Can there be engaged the responsibility of the prison medical staff and/or of the state for the poor quality of medical care, for the health impairment? What are the legal remedies?

Is it possible to be released from pre-trial arrest or to have changed the measure of restraint to a noncustodial one, due to a severe disease, and to benefit from medical care while at liberty?

According to Article 195 of the Criminal Procedure Code, in order to ensure the normal course of a criminal proceeding and the enforcement of the sentence, a preventive measure may be replaced by a more severe one if the need for such a measure is supported by evidence, or it may be replaced by a milder one if such a measure will ensure the personal behaviour of the suspect/accused/defendant. A preventive measure in the form of preventive arrest, house arrest, provisional release under judicial control, and provisional release on bail may be replaced or revoked by the investigative judge or, as the case may be, by the court.

As a ground for changing the measure of restraint to a noncustodial one is the state of health of the beneficiary.

In the presence of medical documents supporting the ineffectiveness of the treatment of tuberculosis in prisons and beneficiary’s poor health, lack of appropriate medical care related to other diseases (digestive system) of the beneficiary, the latter may appeal to the court to change the preventive measure to a noncustodial one.

Also, in the case, the arrest extension should be challenged due to its unlawfulness, because the beneficiary is held under arrest for more than 15 months, that is contrary to Article 25 §4 of the Constitution.

In this regard, the Constitutional Court held that in its judgment no 3 of 23.02.2016 on the exception of unconstitutionality of paragraphs (3), (5), (8) and (9) of Article 186 of the Code of Criminal Procedure (the length of preventive arrest), that for the purposes of Article 25 §4 of the Constitution:

a) The preventive arrest can be applied for a total period of 12 months, which includes both criminal prosecution and judicial stages, upon the issuance of the judicial decision by which the individual is released from custody, or upon sentencing him/her by a court of law. The length of the preventive arrest includes the time when the individual:

- has been apprehended and placed under preventive arrest;

- has been placed under house arrest;

- has been placed in a medical institution, by decision of a court of law, for examination within an in-patient unit and for treatment, following the use of medical coercive measures in relation to him/her.

b) The period of preventive arrest runs from the moment of apprehension, and in case the individual has not been apprehended, from the moment of the effective use of the warrant on preventive arrest.

c) The period of 12 months covers the same criminal act(s) for which the individual was placed in custody, irrespective of the subsequent eventual reclassification of the offense. Any detention exceeding the total period of 12 months for committing the same act, irrespective of any subsequent reclassification of the offense, is contrary to the Constitution and therefore is illegal.

d) The arrest warrant is issued for a period of 30 days at the most. Each prolongation of the preventive arrest cannot exceed 30 days, both for the prosecution and trial stages.

Also, besides challenging the arrest extension, the arrestee’s right to request application of house arrest, provisional release on bail and provisional release under judicial control, as alternatives to preventive arrest (Article 177 of the Criminal Procedure Code).

According to Articles 179-180 of the Criminal Procedure Code, it is also possible the application of a personal guarantee or the guarantee by an organization.

A personal guarantee is a written commitment undertaken by trustworthy persons that they by virtue of their authority and the money they have deposited guarantee the behaviour of the suspect/ accused/defendant including keeping public order, appearing when summoned by a criminal investigative body or the court and meeting other procedural obligations. The number of guarantees may not be fewer than two or more than five. A personal guarantee as a preventive measure shall be admitted only upon the written request of the guarantors and with the consent of the person subject to the guarantee.

A guarantee by an organization is a written commitment undertaken by a trustworthy legal entity that it by virtue of its authority and the money it has deposited guarantees the behaviour of the suspect/accused/defendant including keeping public order, appearing when summoned by a criminal investigation body or the court and meeting other procedural obligations. By assuming such a guarantee, the legal entity shall pay into the deposit account of the prosecutor’s office or the court the amount of 300 to 500 conventional units.

The procedures on request for release and application of alternatives to detention are known under the term of habeas corpus (see, for example the ECHR ruling on the case of Oprea v. Moldova, no. 38055/06, 21 December 2010), which originated in the common law. Habeas corpus procedures are reflected also in Article 5 § 4 of the Convention for the Protection of Human Rights and Fundamental Freedoms (also familiar under the name of the European Convention on Human Rights, adopted in Rome, November 4, 1950). Under Article 5 § 4 of the European Convention, everyone who is deprived of his liberty by arrest or detention shall be entitled to take proceedings by which the lawfulness of his detention shall be decided speedily by a court and his release ordered if the detention is not lawful. Where the national law provides the opportunity to challenge the judgment to a higher authority, then these guarantees are applicable in the framework of these procedures.

Generally, it is always important to remember that the right to freedom is based on the presumption of liberty, and detention is permissible only as an exception, in accordance with the law and international treaties. Refusal of this presumption may be done only under Article 5 § 3 of the European Convention, which requires a convincing motivation to imprisonment.

Can there be engaged the responsibility of the prison medical staff and/or of the state for the poor quality of medical care, for the health impairment? What are the legal remedies?

According to Article 1 of the Law no 263 of 27.10.2005 "On the rights and responsibilities of the patients", the definition of the patient (the consumer of medical services) means a person in need of medical services, receiving or asking for them, regardless of his or her health state or voluntarily participating as a subject in biomedical researches. This definition also applies to persons detained in prisons. Consequently, all the rights granted to patients, are also ensured to convicted persons, according to the Law no 263 of 27.10.2005 and other special laws governing the procedure for the provision of medical care in prisons.

The rights to life and health are ensured to persons serving sentences, which includes social rights related to accessibility, equity and quality of the medical care, as well as individual rights, on respect for the patient’s personality, dignity and physical integrity when using health services or in connection with his or her voluntary participation as a subject in biomedical researches.

Medical care to those in prison is provided in accordance with the provisions of the enforcement legislation, regulations of the Ministry of Health and Social Welfare, of the Ministry of Justice.

Consequently, prisons are also considered as health care providers, as defined in the Law no 263 of 27.10.2005 "On the rights and responsibilities of the patients" - health care and pharmaceutical institutions, regardless of type of ownership and organizational form, doctors, other experts in the field of medicine, and other natural and legal entities who have the right to engage in certain types of medical and pharmaceutical activity.

According to the Ministry of Justice Decree no 478 of 15.12.2006 "On approval of the Procedure on provision of medical care to persons held in prisons”, the latter is provided when needed or when required, by qualified staff, for free and in accordance with existing legislation.

In the circumstances of the case as submitted by the beneficiary - it is clear that no proper (post-surgery) medical care was provided, which has led to a deterioration of health problems, as well he got infected with tuberculosis etc. Consequently, there are grounds for alleging violations of the right to health care.

According to Article 230 of the Enforcement Code, convicted persons are guaranteed the right to health care. Health care in prisons is provided when needed or on request, by qualified staff, for free and in accordance with the law.

The law provides for ensuring detainees with medical and surgical care (p. 5 of the Decree no 478 of 15.12.2006). In case of need or inability to provide immediate specialized medical care, patients are to be hospitalized in medical institutions of the Ministry of Health, which did not happen in the case.

According to Article 231 §3 of the Enforcement Code, convicts needing specialized medical care, are to be directed without delay in a specialized medical institution of the Department of Penitentiary Institutions or in a hospital of the Ministry of Health.

The medical staff of penitentiary institutions shall be liable in accordance with the law for any professional incompetence and improper fulfillment of their professional duties (Law no 411 of 28.03.1995 "On Health Care").

In parallel to criminal proceedings, or in case of impossibility to prove within criminal proceedings the fact of doctor’s or other medical staff negligence in breach of rules or methods of medical care, beneficiaries may initiate a civil lawsuit against the respective state authority (i.e. Ministry of Justice, Department of Penitentiary Institutions) claiming for the recovery of pecuniary and non-pecuniary damage caused as a result of poor quality of medical care, according to the general rules of tort liability.

As related to the international responsibility of the State, the beneficiary may apply to the following international bodies regarding the alleged poor detention conditions and medical care, as well as infecting with tuberculosis:

- UN Human Rights Committee (HRC), according to the First Optional Protocol to the International Covenant on Civil and Political Rights. In this sense, the beneficiary may apply alleging the violation of article 7 of the International Covenant on Civil and Political Rights (prohibition of ill-treatment).

- UN Committee against Torture (CAT), alleging a violation of the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment.

- European Court of Human Rights, concerning violation of Article 3 (torture and inhuman or degrading treatment) of the European Convention on Human Rights. According to Article 41 of the European Convention, if the Court finds that there has been a violation of the Convention or the Protocols thereto, and if the internal law of the High Contracting Party concerned allows only partial compensation, the Court shall, if necessary, afford just satisfaction to the injured party. The just satisfaction is a consequence of a violation by the State of its international obligations assumed under the Convention, and flows from the principle of restitutio in integrum, that is, a demand to recover as far as possible the victim’s situation, in which it was before the violation. Usually, if the victim so requires, the Court awards monetary compensation.

In the context, it is to be noted that in its judgment in the case of Rotaru v. Moldova, no. 51216/06, 15 February 2011, the European Court reiterates that the mere fact that an applicant prisoner falls ill with tuberculosis while in detention does not automatically lead to a finding of a violation of Article 3 of the Convention. However, the fact that he contracted tuberculosis gives additional weight to the applicant's contention that he was detained in conditions dangerous to his health, notably damp cells and insufficient and poor food. The applicant rightly pointed to the fact that a poor diet leads to increased vulnerability to diseases such as tuberculosis (§ 37 of the judgment).

Case №6

One’s infection with "Hepatitis C" may engage the liability of the responsible person

In 2014, the patient appealed to a dental office in Calarasi, where she was given the needed medical care. Later in 2015, while undergoing an examination to be employed, she was diagnosed with "Hepatitis C". The beneficiary alleges that she had been infected while receiving the medical care at the dental office.

Also, the beneficiary complains about the lack of proper medical care and support for people with "Hepatitis C" in Moldova.

Victim’s questions to the experts:

Can there be engaged the responsibility of the medical staff for infection with "Hepatitis C"? What are the legal remedies?

Can there be engaged the responsibility of the State for lack of proper medical care and support for people with "Hepatitis C"?

Can there be engaged the responsibility of the medical staff for infection with "Hepatitis C"? What are the legal remedies?

The dental office is to be considered as a health care provider, as defined in the Law no 263 of 27.10.2005 "On the rights and responsibilities of the patients" - health care and pharmaceutical institutions, regardless of type of ownership and organizational form, doctors, other experts in the field of medicine, and other natural and legal entities who have the right to engage in certain types of medical and pharmaceutical activity.

In the circumstances of the case, as submitted by the beneficiary – there had been negligence as to the standards of due medical care, which led to the beneficiary’s infection with "Hepatitis C". Consequently, there are grounds for alleging violation of the right to health care.

The medical staff of the dental office shall be liable in accordance with the law for any professional incompetence and improper fulfillment of their professional duties (Law no 411 of 28.03.1995 "On Health Care").

In parallel to criminal proceedings, or in case of impossibility to prove within criminal proceedings the fact of doctor’s or other medical staff negligence in breach of rules or methods of medical care, beneficiaries may initiate a civil lawsuit against the medical institution claiming for the recovery of any pecuniary and non-pecuniary damage caused as a result of poor quality of medical care, according to the general rules of tort liability.

Can there be engaged the responsibility of the State for lack of proper medical care and support for people with "Hepatitis C"?

In this context, we would mention that in the case of Pentiacova and Others v. Moldova (dec.), no. 14462/03, the European Court stated that although the object of Article 8 of the European Convention is essentially that of protecting the individual against arbitrary interference by the public authorities, it does not merely compel the State to abstain from such interference since it may also give rise to positive obligations inherent in effective “respect” for private and family life. While the boundaries between the State’s positive and negative obligations under this provision do not always lend themselves to precise definition, the applicable principles are similar. In both contexts regard must be had to the fair balance that has to be struck between the competing interests of the individual and the community as a whole, and in both contexts the State enjoys a certain margin of appreciation.

The Court has previously held that private life includes a person’s physical and psychological integrity. While the Convention does not guarantee as such a right to free medical care, in a number of cases the Court has held that Article 8 is relevant to complaints about public funding to facilitate the mobility and quality of life of disabled applicants. The Court is therefore prepared to assume for the purposes of this application that Article 8 is applicable to the applicants’ complaints about insufficient funding of their treatment.

Please note that, in principle, the application is to be sent to the European Court of Human Rights only after the exhaustion of domestic remedies.

However, if the domestic procedures in means of protection are missing, inaccessible to victims or ineffective in practice, are they administrative or judicial, the applicant is exempted from the requirement of exhaustion of domestic remedies, that means he or she is entitled to file the application directly to the European Court.

Case №7

Poor quality of the medical care, causing injuries to health and physical integrity, entails criminal and civil liability

In 2009, the patient appealed to the Chisinau dental centre for medical care regarding her teeth and rooting a denture. However, as result of poor quality of the medical care and incorrect measuring of the denture, physical and psychical damage had been caused to her health.

Victim’s questions to the experts:

Can there be engaged the responsibility of the medical staff for the poor quality of medical care, for the health impairment? What are the legal remedies?

Can there be engaged the responsibility of the prosecution office and/or the state for failing to investigate complaints against medical staff within the criminal and other proceeding?

Can there be engaged the responsibility of the medical staff for the poor quality of medical care, for the health impairment? What are the legal remedies?

The Chisinau dental centre is to be considered as health care provider, as defined in the Law no 263 of 27.10.2005 "On the rights and responsibilities of the patients" - health care and pharmaceutical institutions, regardless of type of ownership and organizational form, doctors, other experts in the field of medicine, and other natural and legal entities who have the right to engage in certain types of medical and pharmaceutical activity.

In the circumstances of the case, as submitted by the beneficiary – the due medical care was not provided, that impaired her health and psychological state. Consequently, there are grounds for alleging violations of the right to health care.

The medical staff of the dental centre shall be liable in accordance with the law for any professional incompetence and improper fulfillment of their professional duties (Law no 411 of 28.03.1995 "On Health Care").

In parallel to criminal proceedings, or in case of impossibility to prove within criminal proceedings the fact of doctor’s or other medical staff negligence in breach of rules or methods of medical care, beneficiaries may initiate a civil lawsuit against the medical institution claiming for the recovery of pecuniary and non-pecuniary damage caused as a result of poor quality of medical care, according to the general rules of tort liability.

Can there be engaged the responsibility of the prosecution office and/or the state for failing to investigate complaints against medical staff within the criminal and other proceedings?

In 2009, the beneficiary filed a complaint with the prosecution office as regarding the medical staff negligence, on grounds of Article 213 of the Criminal Code.

The prosecutor's office carried out several activities to address the complaint and, in 2010, issued an ordinance refusing the initiation of criminal prosecution. However, the beneficiary was not informed of any investigative measures or about the issued ordinance on refusal.

Since the beneficiary has not been notified of the final decision refusing the initiation of the prosecution, there are grounds for recovery of appeal deadline.

Consequently, in December 2015 the lawyer lodged a request for access to the materials of the file, as regarding the prosecutor's office investigation in 2009-2010, to further appeal under Articles 299/1 and 313 of the Criminal Procedure Code.

Depending on the stage of the criminal investigation, the legal remedies suppose the following steps:

The higher-level prosecutor’s ordinance as regarding the complaint may be appealed to the investigative judge.

The ruling of the investigative judge shall be irrevocable, excepting the rulings on refusal to initiate a criminal investigation, discharging a person from a criminal investigation, terminating criminal investigations, dismissing a criminal case and reopening of criminal investigations that may be appealed to the court of appeal within 15 days from its pronouncement.

It should be noted that in the case it is possible to appeal to the European Court of Human Rights, concerning violation of Article 8 of the Convention on Human Rights and Fundamental Freedoms (also known as the European Convention on Human Rights, adopted in Rome, November 4, 1950) - refusal to investigate or failure to carry out effective investigation of the damage to health and physical integrity. State's positive obligations under Article 8 of the European Convention for the protection of the physical integrity of a person may apply to the issues related to the effectiveness of the investigation.

Please note that, in principle, the application is to be sent to the European Court of Human Rights only after the exhaustion of domestic remedies that is after the court of appeal endorses the prosecutor’s ordinance as regarding refusal to initiate a criminal investigation, terminating criminal investigations or dismissing a criminal case. The application must be lodged within 6 months from the court of appeal decision.

However, if the investigation is unreasonably prolonged, manifestly inefficient and incomplete, the applicant is exempted from the requirement of exhaustion of domestic remedies, that means he or she is entitled to file the application even until the exhaustion of domestic procedures.

If the victim decided to defend their rights through civil action for the recovery of pecuniary and non-pecuniary damage, then the period of 6 months for lodging the complaint with the European Court of Human Rights shall be calculated from the date the judgment of the Supreme Court of Justice is issued.

Case №8

A private medical institution and its staff are also liable for any decease caused by infringement of rules or methods of medical care. The State has to effectively investigate the cause of decease

In 2010, after a surgery in one of the private medical institutions of Moldova, the beneficiary’s husband deceased. On the incident, a criminal case was initiated on the basis of Article 213 of the Criminal Code. Within the criminal procedure, the beneficiary was given the status of heir apparent of the victim.

Victim’s questions to the experts:

Can there be engaged the responsibility of the private institution’s medical staff for the poor quality of medical care, for the health impairment? What are the legal remedies?

Can there be engaged the responsibility of the prosecution office and/or the state for failing to investigate complaints against medical staff within the criminal and other proceedings?

Can there be engaged the responsibility of the private institution’s medical staff for the poor quality of medical care, for the health impairment? What are the legal remedies?

The beneficiary is the legal successor of her deceased husband, according to Art. 81 of the Criminal Procedure Code.

The private medical institution is to be considered as health care provider, as defined in the Law no 263 of 27.10.2005 "On the rights and responsibilities of the patients" - health care and pharmaceutical institutions, regardless of type of ownership and organizational form, doctors, other experts in the field of medicine, and other natural and legal entities who have the right to engage in certain types of medical and pharmaceutical activity.

In the circumstances of the case, as submitted by the beneficiary – the proper medical care was not provided, as well as the contraindications were ignored, thus causing the decease of the beneficiary’s spouse. Consequently, there are grounds for alleging violations of the right to health care.

The medical staff of the private medical institution, as well as a governmental one, shall be liable in accordance with the law for any professional incompetence and improper fulfillment of their professional duties (Law no 411 of 28.03.1995 "On Health Care").

Can there be engaged the responsibility of the prosecution office and/or the state for failing to investigate complaints against medical staff within the criminal and other proceedings?

In 2013, the beneficiary filed a complaint with the police as regarding the medical staff negligence, on grounds of Article 213 of the Criminal Code.

The prosecutor's office carried out several activities to address the complaint, however issued an ordinance refusing the initiation of criminal prosecution, considering that the decease occurred due to natural causes. The beneficiary appealed against this ordinance to the higher-level prosecutor, then to the investigating judge. Following the appeal, the investigating judge cancelled as unlawful the prosecutors’ refusals and rendered the case to be investigated further. The prosecution office initiated a criminal investigation, but closed it after some time. The beneficiary appealed repeatedly to the investigating judge, the latter annulled again the prosecutor’s decision. Then, the beneficiary complained to the General Prosecutor’s Office, referring to the inefficiency of the territorial office’s investigation and requesting a prompt, complete and fair criminal prosecution.

Since the beneficiary has not been notified of the final decision refusing the initiation of the prosecution, there are grounds for recovery of appeal deadline.

Depending on the stage of the criminal investigation, the legal remedies suppose the following steps:

The higher-level prosecutor’s ordinance as regarding the complaint may be appealed to the investigative judge.

The ruling of the investigative judge shall be irrevocable, excepting the rulings on refusal to initiate a criminal investigation, discharging a person from a criminal investigation, terminating criminal investigations, dismissing a criminal case and reopening of criminal investigations that may be appealed to the court of appeal within 15 days from its pronouncement.

Case №9

In case of injury to the employee’s health as a result of work-related injury / work accident, the employee is compensated for the wage (income) lost and any additional expenses related to medical, social and professional rehabilitation due to health injury

The beneficiary F.S. was employed by a furniture company in the capital, working as a woodworking machine operator. In 2015 the beneficiary became the victim of a work accident as a result of which F.S. lost his left thumb while the index finger of his left hand was crushed and maimed as a result of ignoring the rules on protection and safety at work. F.S. was transported with the company car at the Military Hospital in order to be given the necessary medical aid. At the Military Hospital, F.S. was examined by doctors and after about 2 hours of waiting for the necessary medical intervention the staff said that there are no competent surgeons to give him the necessary medical care. Then the victim was transported with the same car to the Emergency Hospital.

At the Emergency Hospital, the doctors on duty refused to give him the necessary medical care (surgery), when he claimed to have suffered the trauma at the workplace. He was given proper medical care only after the doctors on duty at the Emergency Hospital together with the employer’s representatives persuaded him to declare that the trauma occurred at home. The fact that F.S. was imposed (by conditioning the necessary medical care) by the doctors to declare that he suffered the trauma at home is obvious from the statement of the inpatient medical records. Only after the complaints filed by F.S. at the State Labour Inspectorate and investigating the case of the work accident and obtaining clear evidence that the accident occurred from the fault of the employer’s responsible staff, the Emergency Hospital issued another certificate in February 2016. Similarly, the Emergency Hospital insisted to be prepared and issued another statement of the inpatient medical record, where it is already stated that F.S. suffered the trauma at the workplace as a result of an accident at work.

Thus, the State Labour Inspectorate has found that the accident occurred because F.S. was proposed to process a set of pieces that were not accompanied by the protection template. At one time a piece was snatched from his hand, F.S. lost control of the hand holding the piece and the hand was directed towards the electric saw.

In February 2016, the National Council Determining the Disability and Functional Capacity of the Ministry of Labour, Social Protection and Family issued to the beneficiary a certificate of disability and functional capacity stating the loss of functional capacity by 45%.

In 2015 the victim sent to the furniture factory a prior request on the compensation for non-pecuniary and pecuniary damage caused as a result of accident at work. But his requests were rejected, on the ground that F.S. has neglected the Law no. 186 of 10.07.2008 on Occupational Safety and Health.

However, after the involvement of project experts in this case, in April 2016, F.S. submitted a new prior request to the furniture factory on the payment for non-pecuniary and pecuniary damages and monthly compensation equal to 75% of the salary until the restoration of functional capacity.

A number of requests have been also sent to the Ministry of Health, the Municipal Emergency Hospital, and the Central Military Hospital on the timeliness of emergency care provided to the victim. Another query was sent to the Ministry of Labour, Family and Social Protection on the social insurance and aid amounts due to F.S. and the way of their payment. The reply of the Emergency Hospital has provided answers to the questions concerning the methods and standards of giving emergency medical aid. The reply from the Ministry of Labour and Social Protection mentioned that the management of the enterprise where the accident at work occurred is obliged to pay a single indemnity, taking as basis the average monthly salary in the country, for each percentage of loss of functional capacity, but not less than the annual salary of the injured.

Thus, as a result of the project lawyer’s assistance, as regards the new requests to the employer, in June 2016 the beneficiary F.S. and the lawyer visited the furniture factory and had a meeting with its representatives. Following the negotiations conducted, they have reached to an agreement: for the work accident and injury to health, the company management has proposed the victim to be paid for the moral damage the amount of 50 000 MDL, a rest holiday at the seaside in Ukraine and the monthly payment of the amount of 2515 MDL until the beneficiary will be rehabilitated. F.S. was also proposed to be employed in the enterprise as a seller-consultant at one of the stores.

Besides the outcome of the negotiations mentioned above, the victim was explained his rights related to the initial refusal to emergency medical care and the possibility of calling to account those guilty for the accident at the workplace.

Art. 1 of the Law No. 263 of 27.10.2005 on the Rights and Responsibilities of the Patient provides for the notion of patient (consumer of health services) - the person who needs, uses or requests health services regardless of his health or voluntarily participates as a human subject to biomedical researches.

The Municipal Emergency Hospital and the Central Military Hospital are health service providers, as provided by the Law No. 263 of 27.10.2005 on the Rights and Responsibilities of the Patient - medical and pharmaceutical institutions, regardless of their type of ownership and legal form of organization, doctors and other specialists in the field, other natural and legal persons empowered with the right to practice certain types of medical and pharmaceutical activity.

Based on the case circumstances submitted by the beneficiary, it follows that he was not given a prompt urgent medical care, and thus it may be found the violation of the right to healthcare.

Under the laws in force the hospital is accountable for refusing to perform professional duties (Law no. 411 of 28.03.1995 on Healthcare).

Criminal liability for health care staff is provided by Article 213 of the Criminal Code, according to which the violation by negligence of medical assistance rules or methods by a physician or another medical employee causing: a) severe bodily injury or damage to health; b) the death of the patient, shall be punished by imprisonment for up to 3 years with (or without) the deprivation of the right to hold certain positions or to practice certain activities for 2 to 5 years.

As regards the accountability of the employer’s staff, Article 183 of the Criminal Code (Violation of Labour Protection Regulations) provides that the violation by an official or by a person managing a commercial, social, or another nongovernmental organization of the safety regulations, industrial, sanitation, or other labour protection regulations if such a violation causes accidents involving people or other severe consequences shall be punished by a fine in the amount of 200 to 500 conventional units or by community service for 100 to 200 hours or by imprisonment for up to 2 years.

In the criminal trial the beneficiary is entitled to file a civil action for compensation for any non-pecuniary and pecuniary damage caused as a result of the crime (improper healthcare).

In parallel with the criminal trial, or when impossible to prove in the criminal trial the violation by negligence of rules and methods of medical care by a doctor or other health worker, the beneficiary may apply in civil procedure against the medical institution with an action for compensation for the material and moral damage caused as a result of poor medical assistance, according to the general rules of tort liability.

According to Art. 1398 of the Civil Code, a person who commits an illegal and imputable act towards another person is bound to compensate him for pecuniary damage, and, in cases provided by law, also for the moral damage caused by action or non-action.

In this context, we underline that, according to Art. 280 of the Civil Code, claims for damages for injury caused to life of a person are not subject to period of limitation. In such a case, damage for up to 3 years preceding the filing of the action shall be compensated for.

Case №10

Administrative obstacles to obtain health care outside of Moldova

D.M. has the Lobstein disease (also known as the «brittle bone» disease, characterized by brittleness of bones) and required osteosynthesis surgery intervention with telescopic rod Fassier Duval and treatment with Aredia. This intervention was not possible in Moldova, but could be performed in the Grigore Alexandrescu Hospital of Bucharest, Romania. In February 2015, D.M. was consulted in this regard by the team of surgeons from that hospital. But the patient, not being a Romanian citizen, could not benefit from this intervention as an insured individual. Consequently, D.M. obtained funding for the intervention from the Ministry of Health of the Republic of Moldova (4000 euros) and a German NGO (5000 euros).

The funds provided by these sponsors have been deposited in an account (managed by the Mother and Child Centre) and could be paid to the Grigore Alexandrescu Hospital for provision of medical services only if a contract stating the amount of these services and their content would have been concluded between the Hospital and the beneficiary.

It should be noted that, since the intervention involved placing a telescopic rod in the patient's femur, the purchase of that rod had to be included in the contract with the Hospital. Such a rod must be purchased depending on the individual physical characteristics of the person.

Therefore, D.M. needed assistance in the administrative steps on the procedure by which she could receive treatment and surgical intervention in the Grigore Alexandrescu Hospital.

The expert received tasks on legal advice related to the following:

- How can be organized the intervention with telescopic rod in the Gr. Alexandrescu Hospital (patient admission, transfer of funds, purchase of telescopic rod etc.)?

- Request of needed information from the relevant institutions in order to organize hospitalization and surgical intervention.

As a result, D.M. has been informed about how to access the health care services of intervention with a telescopic rod abroad. Following the expert’s requests, it was found that the Grigore Alexandrescu Hospital can purchase the rod only for the patients included in the national health program of Romania, which was an impediment for performing the surgical intervention.

However, given that the process is a lengthy one and the expenses exceed the funds received from the Ministry of Health and the charity organization, after regaining the Romanian citizenship D.M. has decided to make the administrative steps necessary to obtain these services as an insured, as a Romanian citizen.

In this case, the beneficiary has faced administrative difficulties to benefit from hospital admission and treatment abroad. The Ministry of Health has not granted the necessary assistance to the patient so that she could effectively perform the surgical intervention abroad. D.M. had several times the impression that although the Ministry of Health has provided those funds, it has not really helped the patient for the intervention.

The Regulation on selecting the patients for expensive treatment in the health care institutions of Moldova has been approved by The Order no. 91 of 09.04.2009 On selecting the patients for expensive treatment.

Case №11

What is the formula to calculate the disability pension and how the statute of limitations with respect to the legal liability for causing harm to health and bodily integrity does apply?

The beneficiary T.R. became a person with first degree disabilities due to the negligence of doctors, because of the erroneous medical care after a brain emergency surgery in 1999. In fact, the patient was administered a very strong drug, which “burned” almost his entire spinal cord, after which he could not walk.

The beneficiary’s questions to the experts:

Is it possible to seek for the doctors’ criminal and civil liability?

Why is there such a small payment (170 lei) for the first-degree disability?

Question 1: Is it possible to seek for the doctors’ criminal and civil liability?

The Criminal Code of the Republic of Moldova was adopted on 18.04.2002, which means that at the time of the alleged violation, the Criminal Code of 24.03.1961 was in force on the territory of the Republic of Moldova.

In accordance with Art. 8 of the Criminal Code of 18.04.2002, in force actually, whether a deed is incriminated and punishable it is to be determined under the law in force at the time of the deed, that would be the Criminal Code of 24.03.1961, as the applicable law in the case.

In the "old" Criminal Code of 24.03.1961, Art. 115/1 incriminated "the breach of rules or methods of providing health care by a physician or other medical professional as a result of neglect or professional incompetence, if it caused serious bodily injury or death of the patient" (this legal provision is similar to the one established in Article 213 of the actual Criminal Code. - "violation by negligence of the rules and methods in health care"). The penalty for such an offense was imprisonment for up to seven years or a fine of up to three minimum wages with deprivation of the right to engage in professional activities for a period up to four years. The current Criminal Code provides for this offense a penalty of up to three years of imprisonment with or without the deprivation the right to occupy certain positions or engage in certain activities for a period of 2 to 5 years. That means, the current Criminal Code mitigates the nature of the responsibility for such a crime. In accordance with Art. 10 of the Criminal Code of 18.04.2002, in the determination of the punishment to be applied, the court shall fix the maximum sanction and apply the law (Code), which is more favourable for the perpetrator. In this case, the more favourable law is the current Criminal Code, which provides for a maximum sentence of three years imprisonment.

However, in accordance with Art. 16 §3 of the Criminal Code, an offence of medium gravity is considered the act for which the Criminal Code provides for a maximum sentence of imprisonment of up to five years. In view of the above, the alleged offence in the case, as foreseen by Art. 213 of the Criminal Code - "violation by negligence of the rules and methods in health care", for which the doctor may be held criminally liable, is to be considered a medium gravity crime.

In accordance with Art. 60 §1 b) of the Criminal Code, the individual shall be exempted from criminal liability, if from the date of commission of a medium gravity crime expired 5 years.

What does it mean?

This means that, if the crime was committed in 1999, and the person was not prosecuted over 5 years (i.e. until 2004), it should be considered that the statute of limitation for bringing a person to criminal liability has expired. In this case, there are no visible grounds for termination or suspension of the statute of limitation period under Art. 60 §§4-5 of the "new" Criminal Code or Art. 46 of the "old" Criminal Code.

Also, it should be noted that under the above-mentioned legal provision from Art. 213 of the Criminal Code, only an individual with special status (the doctor) may be regarded as perpetrator. In the Criminal Code, there is also a legal provision which is more aggravated - Art. 157 of the Criminal Code "Causing severe or moderate bodily injury by negligence", and is a crime, punishable by a fine of up to 300 conventional units or by community work for a period of 180 to 240 hours or imprisonment for up to 2 years. But in the case of the text, the statute of limitations has expired long ago too. Therefore, most likely, in accordance with Art. 275 §4 of the Criminal Procedure Code, the expired statute of limitations would be considered a circumstance which excludes criminal prosecution and, in accordance with Art. 285 of the Criminal Procedure Code, the prosecutor would terminate any criminal proceedings on the grounds of Art. 60 of the Criminal Code and Art. 275 §4 of the Criminal Procedure Code.

Civil liability of health care staff and / or institutions:

It should be noted that consideration of civil cases relating to engaging physicians to responsibility for the pecuniary and non-pecuniary damage, is regulated by two main codes: the Civil Code of 06.06.2002 and of the Civil Procedure Code of 30.05.2003. However, at the time of the alleged violation, there were in force the "old" Civil and the Civil Procedure Codes of 1964.

In accordance with Art. 6 §2 of the current "new" of the Civil Code, the new law will apply to legal relationships existing on the date of its entry into force.

In accordance with Article 6 §1 of the Civil Code, the civil law is not retroactive. It does not change and does not affect the conditions of occurrence of previously incurred legal relations, as well as the termination conditions of the ceased relations. In addition, the new law does not change and does not annul the effects of existing or discontinued relations.

What does it mean?

This means that in order to attract the culprit (the doctor) to civil liability, the applicant should have filed the suit to the relevant authorities before the expiry of the statute of limitations - three years. (Art. 74 of the "old" Civil Code) According to Art. 78 of the same "old" Civil Code, the application of the statute of limitations period was mandatory, that is, the statute of limitations period was mandatory to be applied the court regardless of the statements of the parties.

In this context, we note that, in accordance with Article 280 of the "new" Civil Code, the statute of limitations does not apply to claims for compensation for damage caused to life or health of the person. In this case, the damage shall be compensated for the period preceding the filing of the claim, but not more than three years.

According to Art. 607 of the "new" Civil Code, the person liable to pay damages must restore the situation that would have existed if the circumstances which caused the losses would not come. If as a result of injury or other damage to health is lost or reduced working capacity, or if the victim as a result of injury or damage have increased his/her needs, a monthly allowance (rent) to recover damages to the victim is set. The rent is set at an amount that depends on the expected changes of the situation and the respective reasonable estimates in respect of the victim's income. The victim has the right to demand the payment for the costs of treatment in advance. This provision is applicable and, if necessary professional reshaping. For justified reasons, the victim may demand a lump sum (the total amount) as compensation instead of the annuity.

Question 2: Why there is such a small payment (in amount of only 170 MDL) for the first-degree disability?

Declaration on the Rights of Persons with Disabilities, adopted by resolution 3447 (XXX) of the UN General Assembly of 9 December 1975 and the Convention on the Rights of Persons with Disabilities, adopted by resolution 61/106 of the UN General Assembly of 13 December 2006, are the main international instruments that prescribe the rights of persons with disabilities, and state's obligation to protect these rights.

The Republic of Moldova signed on 30.03.2007 and ratified on 09.07.2010, the Convention on the Rights of Persons with Disabilities of 13.12.2006.

Art. 4 of the Constitution of the Republic of Moldova states that the constitutional provisions on human rights and freedoms shall be interpreted and applied in accordance with the Universal Declaration of Human Rights, the covenants and other treaties, that the Republic of Moldova is party to.

Also, Art. 5 of the Law on Social Protection of Persons with Disabilities №821 of 24.12.1991, the states that if an international treaty which the Republic of Moldova is party to, establishes rules other than those contained in this Act, the rules of the international treaty shall be applied.

In accordance with Art. 3 of the Law on Social Protection of Persons with Disabilities №821 of 24.12.1991, social protection of persons with disabilities means creating by the State of the conditions for their personal development and the realization of their abilities, rights and freedoms on an equal basis with all other citizens.

In accordance with the current legislation of the Republic of Moldova, there are two categories of beneficiaries at the moment, which can receive a pension for disability:

- insured individuals;

- uninsured individuals (those who have a work experience of less than one year).

The law on pensions applies to insured individuals. As to uninsured individuals, the law on pensions does not apply and funds are allocated annually from the state budget, in the form of a fixed sum.

Insured individuals

In accordance with Art. 9 of the Law №156 of 14.10.1998 on state social insurance pensions, the following types of pensions are provided in the state insurance system:

- for the age;

- in case of disability;

- in case of losing the breadwinner.

In accordance with Art. 19 of the same Law, the disability pensions are awarded to insured persons in case of full or partial loss of ability to work due to:

- a general disease;

- a labour mutilation;

- an occupational disease.

Depending on the individual’s loss of ability to work degree, one of the three disability groups is established.

In accordance with Art. 13 of the Law №156 of 14.10.1998 on state social insurance pensions, indexation of pensions is done annually on 1 April. Indexation coefficient is the mean value between the average annual growth of the consumer price index and annual growth of the average wage in the country for the previous year, determined in accordance with the procedure established by the Government. Only the part of the pension paid from the state social insurance budget is subject to indexation. Payment of the indexing amount is funded from the state budget.

Who is considered an insured individual?

In accordance with Art. 1 of the above-mentioned Law, the insured person is an individual who is of working age, permanently residing or temporarily staying in the Republic of Moldova, registered as the payer of contributions to the social insurance fund in order to receive a pension in proportions to the contributions paid.

What is the insurance period?

According to Art. 1 of the above-mentioned Law, the insurance period is the sum of the employment periods during which state social insurance contributions were made to the pension fund.

Why the insurance period is needed and how is the disability pension paid, when there is no insurance period?

Insurance period required when calculating the amount of the disability pension payment is determined in accordance with the criteria stipulated by Article 20 of the Law №156 of 14.10.1998 and Government Decision №328 from 19.03.2008 "On approval of the Procedure of calculation of state social insurance pensions" which is set as follows:

Insurance period required depending on the age at the date of establishment of disability degree:

Age at the date of establishment of disability degree	Insurance period (years)
Until the age of 23	1
23-26 years	2
26-31 years	3
Over 31 years	5

In accordance with Art. 21 of the above-mentioned Law, the calculation of the disability pension amount is done as follows:

- the amount of the disability pension depends on the disability degree and are defined according to the formulas.

- if the size of the disability pension, as calculated is lower than the minimum pension, the minimum pension is to be appointed.

- when changing the disability degree, the pension is determined by the average monthly insured income, from which was originally calculated the pension, taking into account all the indexation (recalculations), made until changing to the disability degree.

The formula of pension calculation is done in accordance with Annex №3 to the Law №156 of 14.10.1998 on state social insurance pensions.

The amounts of disability pensions are calculated using the following formulas:

I-st disability degree:

V_a

P = 0,42 x S_a + ------- x S_a x 0,1;

V_max

II-nd disability degree:

V_a

P = 0,35 x S_a + ------- x S_ax 0,1;

V_max

III-rd disability degree:

V_a

P = 0,20 x S_a + -------- x S_a x 0,1,

V_max

where:

P – means the amount of pension;

S_a - means the average monthly insured income, calculated after the entry into force of this Law. Its size shall not exceed the amount of two average salaries in the country in the year preceding the year when the pension was established;

V_a – the de facto insurance period;

V_max - the maximum possible insurance period for the period starting with the age of 18 until the retirement age provided in Article 41 §1 of the Law on state social insurance pensions, but not exceeding 39 years.

When calculating the average income of the insured, the insured person can apply to exclude from the calculation of the period during which the social insurance contributions were paid on the basis of score-hectares. This specified period is excluded both from the insurance period.

It should be noted that prior to 1 January 2010, the formula for calculating the size of the disability pension in accordance with paragraph (2) of Article 54 of the Law №156 of 14.10.1998 on state social insurance pensions, was defined as follows:

The size of the disability pension for the period preceding the entry into force of the amendments to the Law in 2009 was calculated according to the disability degree by the following formulas:

1) for people with I-st disability degree:

P_v = P_m3 + 0,20 х S_m х K;

2) for people with II-nd disability degree:

P_v = P_m4 + 0,15 х S_m х K;

3) for people with III-rd disability degree:

P_v = P_m5 + 0,07 х S_m х K,

where:

P_v - means the amount of pension;

P_m3 –the state guaranteed minimum fixed amount to the pension for I-st disability degree;

P_m4 – the state guaranteed minimum fixed amount to the pension for II-nd disability degree;

P_m5 – the state guaranteed minimum fixed amount to the pension for III-rd disability degree;

S_m - the average monthly salary in the country for the year preceding the year of retirement, or in the case of a pension established during the period from January 1 to March 31 including - the average monthly salary in the country from which were paid contributions during the year before the year preceding retirement;

K – the individual coefficient of the pensioner, calculated according to §3 of the Annex 4 to that Law.

As to the uninsured individuals

Among the recipients of pensions in the Republic of Moldova, there is one rather large category - it is the recipients of social pensions (benefits). These pensions (benefits) are funded from the state budget and are not regulated by the Law "On State Social Insurance Pensions". The right to social pensions (benefits) is offered to persons who have not earned that right within the system of social insurance: people with disabilities since childhood and due to a general disease, that do not have enough insurance period for receiving a disability pension.

Since 1999, the Republic of Moldova social pensions were transferred to the category of social security benefits. In July 2003, this process has been completed, all social pensions were transformed into social benefits that significantly increased the burden on the state budget, but allowed to release the pensions and benefits Fund of inappropriate payments.

In line with the National Social Insurance Body records, the minimum pension for the insured individuals is 533, 54 MDL.

In accordance with Art. 23 of the Law №156 of 14.10.1998 on state social insurance pensions, payment of disability pensions to individuals who receive full state support, is performed at the rate of 25 percent from the fixed pensions: in this case, that would be 533, 54 ÷ 4 = 134 MDL on 04.01.2014.

Case №12

Confidentiality of medical information and consequently the right to privacy are protected by law

V.S. has received in the past medical treatment in the Psychiatry Hospital of Balti. Information on the hospitalization period and the diagnosis has been offered by the medical staff (the deputy director of the institution) to a third party (a lawyer) without the patient's permission, in violation of the confidentiality of medical information. Subsequently, this information was presented in a lawsuit, in which the victim was the plaintiff within the trial on marriage dissolution and determining the residence of the child.

When the civil case V.S. against R.S. on marriage dissolution, property sharing and determining the residence of the child was examined at the Balti Court, the lawyer of the defendant R.S. submitted to the court the reply he received from the Psychiatry Hospital of Balti following his official request. In this reply, the deputy director of the medical institution informed that V.S. was admitted for treatment during 2014 (2 times), indicating at the same time the exact periods and the diagnosis set every time. Moreover, the information issued by the hospital contained also other personal data: birth date, home address etc.

The lawyer V.T. presented this information at the hearing in certified copy as an annex to the defendant's counterclaim.

Being concerned by this information, V.S. has not given her consent on releasing this personal information neither to the medical institution Psychiatry Hospital of Balti, nor to the lawyer V.T.

A criminal complaint was filed to the Balti Prosecutor’s Office on the fact of perpetrated offence provided by Art. 177 of the Criminal Code - Violation of Privacy[4]. This complaint was forwarded to the Center for Protection of Personal Data. On 14 January 2015, the Centre for Protection of Personal Data issued a decision finding the violation of the Law on the Protection of Personal Data by the deputy director of the Psychiatry Hospital of Balti and the lawyer V.T. by disclosure and submission of personal data related to the health status of V.S. Although the Center for Protection of Personal Data has also found the presence of elements of the contravention provided by Art. 741 of the Contravention Code - Processing of personal data in violation of the law on personal data protection - the Center could not react as finding agent on the grounds of expiry of the general limitation period provided for by Art. 30 of the Contravention Code (3 months from the date of misdemeanor).

There was filed a civil action on compensation for moral damage caused by the dissemination of medical information, based on Art. 18 of the Law on the Protection of Personal Data, which provides that “Any person who has suffered damage as a result of an unlawful processing operation of personal data or his rights and interests guaranteed by this law have been violated, shall have the right to refer in a court in order to repair the material and moral damages.” The writ of summons has also made reference to Articles 1398, 1422 and 1423 of the Civil Code, Art. 28 of the Constitution and Art. 8 of the European Convention on Human Rights.

Confidentiality of personal data is protected by the above-mentioned criminal and contravention rules, as well as by the Law on Personal Data Protection no. 17 of 15 February 2007, which provides: “The personal data holders and third parties, who obtained access to personal data, shall ensure the confidentiality of such data.”

Confidentiality of medical information is guaranteed by several legal instruments such as:

- Law on Health Protection no. 411-XIII of 28 March 1995, by Art. 14 para. (1): “Doctors, other health care professionals, pharmacists are obliged to keep confidential the information about the disease, the private life and the family life of the patient that they have acquired in the exercise of their profession, except in cases of danger of spread of communicable diseases, following the reasoned request of criminal prosecution bodies or courts.”

- Art. 12 of the Law on Patient’s Rights and Responsibilities no. 263-XVI of 27 October 2005 lays down the conditions to ensure the patient's right to confidentiality of information related to medical secrecy and the exceptions allowed:

“(1) All information on the patients’ identity and condition, the results of investigations, the diagnosis, prognosis, treatment and personal data are confidential and will be protected even after his death.

(2) Confidentiality of information on the request of medical assistance, examination and treatment, including other information that is medical secrecy shall be ensured by the treating physician and the specialists involved in the provision of health services or biomedical research (clinical trial), and by other persons to whom such information became known due to professional obligations and performance of service.

(3) Information that is considered confidential can be provided only if the patient agrees explicitly or at the request of his legal representative (a close relative), in conditions agreed by the patient and to the extent appropriate to his ability of understanding, in situations when the patient’s ability of exercise is not full or missing or if expressly required by law.

(4) Submission of confidential information without the consent of the patient or his legal representative (of a close relative) shall be allowed:

to engage in the curative process other specialists, including in the event of urgent examination and treatment of the person unable to express his will because of his condition, but only in the amount necessary for making an appropriate decision;

to inform the bodies and institutions of the State Sanitary and Epidemiological Service in case of a real danger of expansion of infectious diseases, poisonings and mass contamination;

c) upon a reasoned request from the criminal prosecution body or the court, in connection with a criminal investigation or judicial process according to the law;

c1) at the request of the Ombudsperson or, where appropriate, the ombudsperson for children's rights in order to protect individuals against torture and other cruel, inhuman or degrading treatment or punishment;

c2) at the request of members of the Council for Preventing Torture, during their visits and to the extent necessary to conduct such visits;

to inform the parents or the legal representatives of persons aged under 18 in case of granting them medical assistance;

if there are grounds to believe that the damage caused to the person's health is the result of illegal or criminal actions, and in such case the information has to be submitted to the law enforcement bodies.

(5) Any interference in the private and family life of the patient without his consent is prohibited.

(6) People who, while on duty, have received confidential information, along with the medical and pharmaceutical staff, shall bear responsibility under the law for any disclosure of medical secrecy, taking into account the damage caused by this to the patient.”

- As regards the medical secrecy, Article 9 of the Law no. 1402 of 16 December 1997 on Mental Health provides that: “Information about mental illness, about the request for psychiatric care and treatment in a psychiatric institution and other information about the mental health of a person is a medical secret protected by law. To exercise his legitimate rights and interests the person suffering from mental disorder or his legal representative can obtain on request any information about the psychiatric health and the psychiatric care provided.”

- Chapter VI of the Framework Code of Ethics (Deontology) of the medical and pharmaceutical staff of Moldova: “Disclosure of private information in the exceptional cases mentioned should be done with caution, without any moral prejudice to the patient, with maximum respect for his/her dignity”.

Case №13

The State can be held liable in case of infection with "Hepatitis C" of an individual detained in prison

The beneficiary alleges that, while being detained in prison, she had been infected and later diagnosed with "Hepatitis C". While in custody, during 2012-2015, she was not given any proper medical assistance or health care. Therefore, her state of health significantly deteriorated.

The expert was asked to answer to the following question of the beneficiary:

Can there be engaged the responsibility of the prison medical staff and/or of the state for the poor quality of medical care, for the health impairment? What are the legal remedies?

According to Article 1 of the Law no 263 of 27.10.2005 "On the rights and responsibilities of the patients", the definition of the patient (the consumer of medical services) means a person in need of medical services, receiving or asking for them, regardless of his or her health state or voluntarily participating as a subject in biomedical researches. This definition also applies to persons detained in prisons. Consequently, all the rights granted to patients, are also ensured to convicted persons, according to the Law no 263 of 27.10.2005 and other special laws governing the procedure for the provision of medical care in prisons.

Medical care to those in prison is provided in accordance with the provisions of the enforcement legislation, regulations of the Ministry of Health and Social Welfare, of the Ministry of Justice.

In the circumstances of the case as submitted by the beneficiary - it is clear that no proper medical care was provided, which has led to a deterioration of health problems with the organs of the musculoskeletal system and of the general state of the beneficiary, such as weight loss, lack of appetite etc. Consequently, there are grounds for alleging violations of the right to health care.

The medical staff of penitentiary institutions shall be liable in accordance with the law for any professional incompetence and improper fulfilment of their professional duties (Law no 411 of 28.03.1995 "On Health Care").

In parallel to criminal proceedings, or in case of impossibility to prove within criminal proceedings the fact of doctor’s or other medical staff negligence in breach of rules or methods of medical care, beneficiaries may initiate a civil lawsuit against the respective state authority (i.e. Ministry of Justice, Department of Penitentiary Institutions) claiming for the recovery of pecuniary and non-pecuniary damage caused as a result of poor quality of medical care, according to the general rules of tort liability.

As related to the international responsibility of the State, the beneficiary may apply to the following international bodies regarding the alleged infecting with "Hepatitis C" and failure to provide medical care:

- UN Committee against Torture (CAT), alleging a violation of the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment.

- European Court of Human Rights, concerning violation of Article 3 (torture and inhuman or degrading treatment) of the Convention on Human Rights and Fundamental Freedoms (also known as the European Convention on Human Rights, adopted in Rome, November 4, 1950) . According to Article 41 of the European Convention, if the Court finds that there has been a violation of the Convention or the Protocols thereto, and if the internal law of the High Contracting Party concerned allows only partial compensation, the Court shall, if necessary, afford just satisfaction to the injured party. The just satisfaction is a consequence of a violation by the State of its international obligations assumed under the Convention, and flows from the principle of restitutio in integrum, that is, a demand to recover as far as possible the victim’s situation, in which it was before the violation. Usually, if the victim so requires, the Court awards monetary compensation.

In the context, as regarding the alleged state’s fault in infecting the beneficiary with "Hepatitis C", it is to be noted that in its judgment in the case of Rotaru v. Moldova, no. 51216/06, 15 February 2011, the European Court reiterates that the mere fact that an applicant prisoner falls ill with tuberculosis while in detention does not automatically lead to a finding of a violation of Article 3 of the Convention. However, the fact that he contracted tuberculosis gives additional weight to the applicant's contention that he was detained in conditions dangerous to his health, notably damp cells and insufficient and poor food. The applicant rightly points to the fact that a poor diet leads to increased vulnerability to diseases such as tuberculosis (§ 37 of the judgment).

However, in some cases, it is quite difficult to prove that infection with "Hepatitis C" happened within the period of imprisonment in the penitentiary institutions (see for example the ECtHR decision in the case of X. v. Moldova (dec.), no. 37507/02, 05 January 2010).

In a more recent case-law, namely in the case of Pivovarnik v. Ukraine, no. 29070/15, 6 October 2016, the Court was aware that the applicant’s condition (diagnosed with hepatitis C) was chronic and, according to certain medical opinions, inactive. However, the Government did not argue that in light of those characteristics it did not require particular attention and treatment. In fact, the authorities did find signs of deterioration in the applicant’s condition – in particular, that he suffered from a degree of liver impairment – and eventually recommended certain treatment. For the Court, this indicated that the applicant’s condition in fact required medical attention and treatment, which was denied to the applicant for a substantial period of time. In examining the applicant’s particular situation, the Court was also aware of the general background of the lack of sufficient medical care for hepatitis patients in the Ukrainian places of detention. The Court concluded that the prison authorities failed to ensure regular and systematic medical supervision of the applicant’s condition and to put in place a comprehensive treatment strategy in respect of his hepatitis. These considerations were sufficient for the Court to find that there has been a violation of Article 3 of the Convention (see §§ 42-46 of the above-mentioned judgment).

Case №14

The State must prevent and effectively investigate the medical staff attempts to hide their negligence by the illegal transfer of patients to other facilities and carrying out repeated surgery

In June 2015, the patient underwent a failed gynaecological surgery. In order to hide the violation, the doctor transported secretly the patient to another facility where the patient experienced a new surgery that also did not give results. Beneficiary complained to the medical institution, but the complaint did not give a positive response. After filing a complaint to the police, the accused doctor threatened the beneficiary on the phone, and involved the police officer in trying to force her to withdraw the complaint.

Victim’s questions to the experts:

Can there be engaged the responsibility of the medical staff and/or the State for the poor quality of medical care, for the health impairment? What are the legal remedies?

Can there be engaged the responsibility of the prosecution office and/or the state for failing to investigate complaints against doctors / medical institutions within the criminal and other proceedings?

Can there be engaged the responsibility of the medical staff and/or the State for the poor quality of medical care, for the health impairment? What are the legal remedies?

The medical institutions in the case are to be considered as health care provider, as defined in the Law no 263 of 27.10.2005 "On the rights and responsibilities of the patients" - health care and pharmaceutical institutions, regardless of type of ownership and organizational form, doctors, other experts in the field of medicine, and other natural and legal entities who have the right to engage in certain types of medical and pharmaceutical activity.

In the circumstances of the case, as submitted by the beneficiary – the due medical care was not provided, that led to the deterioration of health, psychological state and general condition of the beneficiary. Consequently, there are grounds for alleging violations of the right to health care.

The medical staff shall be liable in accordance with the law for any professional incompetence and improper fulfilment of their professional duties (Law no 411 of 28.03.1995 "On Health Care").

In parallel to criminal proceedings, or in case of impossibility to prove within criminal proceedings the fact of doctor’s or other medical staff negligence in breach of rules or methods of medical care, beneficiaries may initiate a civil lawsuit against the medical institution claiming for the recovery of pecuniary and non-pecuniary damage caused as a result of poor quality of medical care, according to the general rules of tort liability.

On 1 June 2016, the lawyer filed complaints as regarding the doctor and the police officer, who by means of threats and abuse of power tried to force the beneficiary to withdraw his earlier written complaint.

In case there is a refusal to start the criminal prosecution / administrative proceeding, the refusal may be appealed in accordance with Article 299/1 of the Criminal Procedure Code, according to which the victim, civil plaintiff and their representatives, as well as other persons whose rights and legitimate interests have been infringed by the prosecution, may file a complaint against the actions, omissions and acts committed or sanctioned by the prosecutor, leading the criminal prosecution or carrying it out.

The higher-level prosecutor’s ordinance as regarding the complaint may be appealed to the investigative judge.

The ruling of the investigative judge shall be irrevocable, excepting the rulings on refusal to initiate a criminal investigation, discharging a person from a criminal investigation, terminating criminal investigations, dismissing a criminal case and reopening of criminal investigations that may be appealed to the court of appeal within 15 days from its pronouncement.

Case №15

Medical care is a fundamental right of the prisoners

The beneficiary is a convict, serving her sentence in a Moldovan penitentiary institution (hereinafter PI). Previously, the beneficiary was diagnosed with diseases in the gallbladder. The victim complains that she was not given necessary medical assistance in due time. In 2014, a surgery on the gallbladder has been done, that caused complications.

Victim’s questions to the experts:

Can there be engaged the responsibility of the prison medical staff and/or of the state for the lack of medical care? What are the legal remedies?

How to prevent the same negative effects in the case of reappearance of similar problems?

Is it possible to decrease the term of imprisonment for violations of the prison medical staff in failing to provide timely medical care?

Can there be engaged the responsibility of the prison medical staff and/or of the state for the lack of medical care? What are the legal remedies?

According to Article 1 of the Law no 263 of 27.10.2005 "On the rights and responsibilities of the patients", the definition of the patient (the consumer of medical services) means a person in need of medical services, receiving or asking for them, regardless of his or her health state or voluntarily participating as a subject in biomedical researches. This definition also applies to persons detained in prisons. Consequently, all the rights granted to patients, are also ensured to convicted persons, according to the Law no 263 of 27.10.2005 and other special laws governing the procedure for the provision of medical care in prisons.

Medical care to those in prison is provided in accordance with the provisions of the enforcement legislation, regulations of the Ministry of Health and Social Welfare, of the Ministry of Justice.

In the circumstances of the case, as submitted by the beneficiary – the medical care and later the surgical intervention were provided with delays. Consequently, there are grounds for alleging violations of the right to health care.

According to Article 231 §3 of the Enforcement Code, convicts needing specialized medical care are to be directed without delay to a specialized medical institution of the Department of Penitentiary Institutions or to a hospital of the Ministry of Health.

This rule specifies the timing of directing detainees to a specialized medical institution - without any delay, which was not ensured.

Within the criminal proceedings, the beneficiaries are entitled to bring a civil action for the recovery of material and non-pecuniary damage suffered as a consequence of the crime, i.e., poor quality of medical care.

In parallel to criminal proceedings, or in case of impossibility to prove within criminal proceedings the fact of doctor’s or other medical staff negligence in breach of rules or methods of medical care, beneficiaries may initiate a civil lawsuit against the respective state authority (i.e. Ministry of Justice, Department of Penitentiary Institutions) claiming for the recovery of pecuniary and non-pecuniary damage caused as a result of poor quality of medical care, according to the general rules of tort liability.

How to prevent the same negative effects in the case of reappearance of similar problems?

In order to ensure evidence, it is necessary to exclude any verbal requests. Consequently, requests to the PI administration should only be in written form.

In case of failure to provide urgent medical care, the victim may request a private doctor in the PI, and in case of failure of such a requirement, it is necessary to appeal the illegal refusal to the judge for the criminal prosecution.

If it is not possible (because of financial status) to benefit from private medical services, it is recommended to ask the PI administration to call for emergency medical care.

Is it possible to decrease the term of imprisonment for violations of the prison medical staff in failing to provide timely medical care?

There is no provision in the criminal (procedural) law specifying the possibility to mitigate the situation of a convicted in connection with any violation of his rights in the process of serving the sentence, however, there is the prisoner’s right to apply such a statement to the investigative judge on the basis of Article 469 of the Criminal Procedure Code.

Article 469 of the Criminal Procedure Code regulates the issues to be resolved by the court as regarding the execution of a punishment. According to paragraph 18 of that article, the court shall decide on any changes concerning execution of certain decisions, namely: other matters provided by law, arising during execution of the punishment by prisoners.

In the event that there occurs severe harm for health (another illness or complication of the existing one) as a consequence of poor quality of health care, the beneficiary may on the basis of Article 469 §1 p.3 of the Criminal Procedure Code, according to which during the execution of the punishment, the court shall decide on any changes concerning execution of certain decisions, namely: exemption from punishment of individuals with severe diseases (Article 95 of the Criminal Code).

According to Article 95 §2 of the Criminal Code, a person who before being sentenced or while serving a sentence develops a severe disease that prevents the confinement, may be exempted by the court from his or her punishment.

Case №16

The right to insurance for occupational diseases is guaranteed by the State

The beneficiary M.R. worked as a mechanic for about 30 years in harmful and toxic conditions at a typography. The beneficiary complains that he was diagnosed with a chronic pathology, which over the years led to the occurrence of occupational diseases - laryngeal cancer, respiratory intoxication etc.

After being consulted by a medical specialist in occupational diseases, he was informed that in order to determine the occupational disease in his case, the Public Health Centre has to carry out an inspection in the enterprises (typographies) where he worked. For this purpose, the Chisinau Public Health Centre has made the inspection and as a result, in September 2014 the Minutes on examination of the occupational disease case were drafted. According to the minutes no connection was there between the working conditions and the diseases revealed at M.R. The latter did not agree with the conclusions of that inspection, invoking also various procedural violations.

Therefore, the project’s expert was addressed the following questions:

What is the procedure for establishing the correct diagnosis and the competent medical institution?

The victim will ask further investigations from the specialist in occupational diseases in order to get the diagnosis, based on family doctor’s referral.

Which is the body empowered to control and oversee the working conditions of employees?

The bodies empowered to control and supervise the working conditions of employees are the State Labour Inspectorate and the Public Health Centre of Chisinau.

The State Labour Inspectorate is an administrative authority subordinated to the Ministry of Labour, Social Protection and Family.

The State Labour Inspectorate exercises state control on the observance of laws and regulations in the field of labour in enterprises, institutions and organizations with any type of property and legal form of organization, at individuals who have employees and in authorities of central and local government (employers). The activity, structure and functions of the State Labour Inspectorate are regulated by the Law no. 140 of 10.05.2001 on the State Labour Inspectorate.

The Public Health Centre exercises control according to the Law no. 10 of 03.02.2009 on State Supervision of Public Health.

What are the rights of the victim within the inspection by the Public Health Centre?

The person has the following rights:

- the right to challenge the results of the examination;

- the right to file objections on the minutes;

- the right to be informed about the date, time and place of control;

- the right to attend during the control of working conditions by the authorized body.

Is there any possibility to challenge such decisions of medical institutions?

The minutes on establishing the occupational disease may be challenged to the hierarchically higher body, namely the National Centre for Public Health, whose decision can be appealed in its turn to the administrative court.

Thus, in January 2015 M.R. asked legal advice from the NGO "Human Rights Embassy". As a result the NGO "Human Rights Embassy" decided to file a complaint with the National Centre for Public Health on the disagreement with the Minutes on examination of the occupational disease case of September 2014, which was prepared with serious violation of legal and medical rules namely: Law no. 10 of 03.02.2009 on State Supervision of Public Health; Government Decision no. 324 of 05.30.2013 on approval of sanitary regulations on the health and safety requirements for the protection of workers from risks related to chemical agents at workplace; Government Decision no. 384 of 12.05.2010 on the State Public Health Supervision Service; Labour Code.

Thus, Human Rights Embassy has alerted on the fact that this individual case of work for over 30 years in harmful conditions meets the conditions of an occupational disease:

- has occurred from the exercise of the profession as a mechanic;

- the disease is caused by physical, chemical, biological risk factors characteristic for the workplace;

- risk factors action on the body of the person is long-lasting.

The consequences of such working conditions are poisonings caused by inhalation of toxic substances, usually in relatively low doses, but acting for a long time on the body.

The inspection of September 2014 was conducted formally, without taking any evidence or dose of the materials used in production, in order to find their concentration in the air. Moreover, not all the substances used actually in production and to repair the printing machines have been listed. The working hours have not been correctly stated because the petitioner was inside the room with harmful substances not for 3 hours, but for 8 hours per day.

The worker is entitled to attend the examination and the drafting of the minutes, but he was not informed about the date and time of inspection. He also has a legal right to participate and to submit objections. The challenged minutes had gaps; even the length of service in harmful conditions was not true, because he worked in harmful and dangerous conditions during 1984-2014, i.e. 30 years instead of 22 as was indicated in the minutes.

The work process was not described in detail. The minutes only listed some chemicals, which combined in interaction with each other may cause serious consequences to health. Those details were omitted.

At the time, in the national legislation there was an obsolete legal document because it did not provide all the necessary steps to investigate the circumstances and causes of occupational diseases (poisoning), (Ministry of Health Order no. 257 of 08.11.1993 On improvement of the service for detection, treatment and prevention of occupational diseases in the Republic).

Monitoring of health status of people affected by occupational diseases is missing.

Therefore, Human Rights Embassy has requested an additional inspection with issuing of a new minutes, which would find fairly and objectively the case of occupational disease arising from the work in harmful and dangerous conditions at the two typographies.

In its reply, the National Centre for Public Health stated that in his professional capacity as a mechanic, locksmith and fitter, according to the job description, M.R. had the following tasks: servicing according to the schedule the printing machines (changing the oil and the worn parts) and troubleshooting of printing machines and newspaper line.

The working schedule was organized in one shift (8 hours) per day, with a working week of 40 hours. The repair operations at one of the typographies were performed directly in the ward, when the machine was not working, while at the other the machinery was repaired in the mechanical station located separately. The working time needed to repair the machines was on average of 3 hours during the work shift. When servicing the printing machines, repairing them and the newspaper line, M.R. came into contact with chemicals (mineral oils). The production premises of these printing houses are provided with mechanical ventilation of air by inflow-outflow.

During the work M.R. would have been equipped with individual protection means: clothing and rubber gloves (which protect the skin from the action of chemicals).

The results of laboratory investigations on the air in the working environment of M.R. carried out in the past 7 years by the Chisinau Public Health Centre and the Public Health Centre of the State Chancellery Treatment and Sanatorium Association did not reveal any presence of mineral oils. In the additional research of the case, the specialists of the National Centre for Public Health took air samples from similar work premises from those printing facilities. The results of their investigation have confirmed the absence of mineral oils in the air of the working area.

According to the sanitary regulations on the health and safety requirements for the protection of workers from risks related to chemical agents at workplace, approved by the Government Decision no. 324 of 30.05.2013, mineral oils do not have carcinogenic action on respiratory organs.

Chemically, the working conditions of M.R. (exercising the profession of printing house mechanic and locksmith) are classified as admissible (class 2) according to: The methodical guidelines “Hygienical assessment of occupational environment and work process factors. Hygienical criteria on classification of work conditions” approved by the Chief Sanitary Doctor of the Republic of Moldova by the Order no. 01.1032.3-1 of 10.03.2008).

Thus, the National Centre for Public Health argued that the above mentioned show no connection between the working conditions and the occupational disease suspected in this case.

The NGO "Human Rights Embassy" recommended to the project beneficiary to challenge in court the refusal of the National Centre for Public Health.

The right to insurance against occupational accidents and diseases is guaranteed by the state, including by the rules and arrangements under the Law no. 756 of 24.12.1999 on Insurance for Occupational Accidents and Diseases.

Case №17

Unlawful refusal in providing health care is in breach with fundamental human rights

In 2016, the beneficiary R.M. suffered a foodborne disease and he addressed for medical care to the Chisinau Hospital for Infectious Diseases “Toma Ciorba”. However, he was denied medical care because of lack of the health insurance policy.

Victim’s questions to the experts:

Can there be engaged the responsibility of the medical staff for refusing to provide medical care? What are the legal remedies?

The Chisinau Hospital for Infectious Diseases “Toma Ciorba” is to be considered as health care provider, as defined in the Law no 263 of 27.10.2005 "On the rights and responsibilities of the patients" - health care and pharmaceutical institutions, regardless of type of ownership and organizational form, doctors, other experts in the field of medicine, and other natural and legal entities who have the right to engage in certain types of medical and pharmaceutical activity.

The medical staff shall be liable in accordance with the law for any refusal to comply with their professional duties (Law no 411 of 28.03.1995 "On Health Care").

In parallel to criminal proceedings, or in case of impossibility to prove within criminal proceedings the fact of doctor’s or other medical staff negligence in breach of rules or methods of medical care, beneficiaries may initiate a civil lawsuit against the medical institution claiming for the recovery of pecuniary and non-pecuniary damage caused as a result of poor quality of medical care, according to the general rules of tort liability.

Case №18

The development of mental health services based on social, professional and family integration of persons with mental disabilities is a priority

The beneficiary is a first-degree disabled person, suffering from epilepsy. He was transferred from ward no. 10 of the Psychiatry Hospital of Balti, where patients with epilepsy are treated, to ward no. 5 of the same hospital, where patients with schizophrenia are treated. This transfer took place due to repair works conducted in ward no. 10.

The beneficiary is dissatisfied because he thinks that his treatment should not take place in such an environment, i.e. with patients suffering from the more complicated / grave intellectual disabilities or mental health problems such as schizophrenia, for example.

Are the patient’s rights violated if the patient suffers from epilepsy and does not want to be treated in the ward where patients suffering from schizophrenia are treated?

The team of the NGO “Human Rights Embassy” has filed an official interpellation in this regard.

The main documents regulating the rights of patients suffering from epilepsy are:

- The World Health Organisation Recommendation of 2008;

- The Decision of the European Affairs Committee of the International League against Epilepsy (ILAE) of 2011;

- The European Parliament Declaration of 15.09.2011 on the strategic plan developed by the World Health Organization.

Currently in the Republic of Moldova is in force the Law no. 411 of 28.03.1995 on Healthcare, which is outdated and requires changes since the new standards in the field of patients' rights are an innovation for Moldova and it is necessary to implement them. Therefore, the Government of Moldova adopted the Decision no. 1471 of 24.12.2007 on the Health System Development Strategy for 2008-2017.

In accordance with this Decision, the Ministry of Health has adopted two orders:

- Order no. 1024 of 30.12.2011 on the organization and functioning of services for persons suffering from epilepsy in Moldova;

- Order no. 976 of 29.09.2014 on the organization of health services in the National Epileptology Centre.

In accordance with Order no. 1024 of 30.12.2011, the psychiatry and epileptology ward was transformed into the neurology and epileptology ward.

This means that, in accordance with Annex 3 to the Order no. 1024 of 30.12.2011, epileptic patients who do not suffer from mental disorders will receive specialized treatment in medical centres with neurological profile. And the patients with epilepsy who suffer from mental disorders will continue to be treated in the medical centres with psychiatric specialization.

Therefore, there is no order on liquidation of ward no. 10 of the Psychiatry Hospital no. 5 of Balti, but in the future, the patients suffering from epilepsy and mental disorders will be treated in ward no. 10.

It should be noted that, according to internal orders adopted in the Psychiatry Hospital no. 5 of Balti, the number of hospital beds in ward no. 10 has been reduced, since patients suffering from epileptic disorders were redeployed in the territorial health centres.

It has been also confirmed that there is no related order of the Ministry of Health, but temporarily in ward no. 10 repairs are carried out.

The expert’s conclusion: In order to establish any violation of the rights of a patient suffering from epilepsy in this case, one should at least identify the existence of de jure or de facto prohibition on access to appropriate treatment. For this, the patient suffering from epilepsy must pass an appropriate medical examination establishing the due treatment, according to the specific of this disease. Then the patient has to request an appropriate treatment according to the laws in force. In case of refusal or provision of improper treatment, the patient can complain about the violation of that right.

Case №19, №20, №21 №22

(the description / analysis of the key problems in these 4 cases is relevant for all four project beneficiaries due to the similar conditions, and to the similar questions raised and addressed to the project experts)

The right of a sentenced to imprisonment individual for exemption from punishment in connection with a severe disease and the State’s responsibility for the inhuman or degrading treatment in detention

Beneficiaries of the four cases are women who are in prison; serving sentences in different penitentiary institutions of Moldova (hereinafter PI).

While being in custody, the beneficiaries’ health significantly deteriorated. They suffer from various diseases (diabetes, hepatitis, tumour, chronic pyelonephritis, as well as problems and complications of the musculoskeletal system). Beneficiaries complain about the lack of proper medical care and medicines, about poor conditions in detention, their unsuitability for the disabled and others.

Victims’ questions to the experts:

Does the law foresee any possibility for release from serving a sentence in connection with a severe disease?

Can there be engaged the responsibility of the prison medical staff and/or of the State for the poor quality of medical care, for the health impairment? What are the legal remedies?

Does the law foresee any possibility for release from serving a sentence in connection with a severe disease?

Article 469 of the Criminal Procedure Code of the Republic of Moldova, regulates the issues to be resolved by the court as regarding the execution of a punishment. According to §3 of Article 469 of the Criminal Procedure Code, in matters related to the execution of a punishment, the court shall decide on partially changing the execution of certain decisions, namely, exemption from punishment of individuals with severe diseases (Article 95 of the Criminal Code).

According to Article 95 §2 of the Criminal Code, a person who before sentencing or while serving a sentence develops a severe disease that prevents the confinement, may be exempted by the court from his or her punishment.

At the time of consultation, there were only two of the beneficiaries that had grounds for applying of Article 95 of the Criminal Code and the release from punishment. However, the PI refused unreasonably to issue the respective medical reports on pretending a lack of clarity of the situation, despite the fact that the first beneficiary suffered from diabetes in a severe form (3 drip chambers per day, difficulty in walking, weight loss of 30 kg), while the second beneficiary had hepatitis and brain tumour. The beneficiaries’ diseases are included in the list of severe diseases, approved by Decree of the Ministry of Justice №331 from 06.09.2006 on the approval of the Rules on the procedure for the submission of seriously ill convicts to be released from punishment.

However, in spite of all the grounds for the applying Article 95 §2 of the Criminal Code, the PI refused to request the court to release the beneficiaries from punishment.

At the time of imprisonment, one of the beneficiaries should have applied, and the other has already appealed to the court on the application of Article 95 §2 of the Criminal Code, but at the time of the application, she has already been transferred to another prison, so the court sent the case for review according to territorial jurisdiction to another court (at the place of serving the sentence). But even there the case was not considered as the beneficiary was transferred again, to a third prison.

Taking into account this fact, the beneficiary must submit to the judge for criminal prosecution, at her location at the moment, a request on the application of Article 95 §2 of the Criminal Code and on release of the beneficiary from punishment because of her serious illness, according to the Rules approved by the Minister’s of Justice Decree no 331 of 06.09.2006.

The remaining two of the beneficiaries had no grounds for the application of Article 95 of the Criminal Code and release from serving their sentences, because their diseases are not included in the list of serious ones, approved by the Minister’s of Justice Decree no 331 of 06.09.2006.

Can there be engaged the responsibility of the prison medical staff and/or of the State for the poor quality of medical care, for the health impairment? What are the legal remedies?

According to Article 1 of the Law no 263 of 27.10.2005 "On the rights and responsibilities of the patients", the definition of the patient (the consumer of medical services) means a person in need of medical services, receiving or asking for them, regardless of his or her health state or voluntarily participating as a subject in biomedical researches. This definition also applies to persons detained in prisons. Consequently, all the rights granted to patients, are also ensured to convicted persons, according to the Law no 263 of 27.10.2005 and other special laws governing the procedure for the provision of medical care in prisons.

Medical care to those in prison is provided in accordance with the provisions of the enforcement legislation, regulations of the Ministry of Health and Social Welfare, of the Ministry of Justice.

In the circumstances of the cases as submitted by the beneficiaries - it is clear that no proper medical care was provided, which has led to a deterioration of health problems with the organs of the musculoskeletal system and of the general state of the beneficiaries, such as weight loss, lack of appetite etc. Consequently, there are grounds for alleging violations of the right to health care.

According to Article 231 §3 of the Enforcement Code, convicts in need of the specialized medical care, are to be directed without delay in a specialized medical institution of the Department of Penitentiary Institutions or in a hospital of the Ministry of Health.

In parallel to criminal proceedings, or in case of impossibility to prove within criminal proceedings the fact of doctor’s or other medical staff negligence in breach of rules or methods of medical care, beneficiaries may initiate a civil lawsuit against the respective state authority (i.e. Ministry of Justice, Department of Penitentiary Institutions) claiming for the recovery of material and non-pecuniary damage caused as a result of poor quality of medical care, according to the general rules of tort liability.

According to Article 1398 of the Civil Code, an individual that acts wrongfully in relation to another person, is obliged to compensate the occurred material and non-pecuniary damage, according to law.

As related to the international responsibility of the State, the beneficiaries may apply to the following international bodies regarding the conditions of detention and failure to provide medical care:

- UN Committee against Torture (CAT), alleging a violation of the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment;

- European Court of Human Rights, concerning violation of Article 3 (torture and inhuman or degrading treatment) of the Convention on Human Rights and Fundamental Freedoms (also known as the European Convention on Human Rights, adopted in Rome, November 4, 1950). According to Article 41 of the European Convention, if the Court finds that there has been a violation of the Convention or the Protocols thereto, and if the internal law of the High Contracting Party concerned allows only partial compensation, the Court shall, if necessary, afford just satisfaction to the injured party. The just satisfaction is a consequence of a violation by the State of its international obligations assumed under the Convention, and flows from the principle of restitutio in integrum, that is, a demand to recover as far as possible the victim’s situation, in which it was before the violation. Usually, if the victim so requires, the Court awards monetary compensation.

Strategic litigation case in the framework of the “Bringing Human Rights to Patients and Health Care Providers” Project

Case №23

Is surgical sterilization of a woman at the time of birth (without the consent of the patient) a systemic problem?

In this case, the beneficiary A.M. is married to D.M. In 1999 she gave birth to their first child by caesarean.

In 2004 the victim A.M. got pregnant for the second time. During the pregnancy, the medical tests have shown no clinical pathology, the overall condition of the beneficiary A.M. being satisfactory at each medical examination.

Subsequently, in June 2004, the victim A.M. underwent a planned caesarean intervention in the Stefan Voda District Hospital to give birth to the child. Thus, the child was born alive, but during the caesarean section he (male) suffered trauma caused by the doctor who performed the caesarean section and extracted the new-born. After childbirth, the health care institution provided medical assistance in violation of the medical rules.

Also, during the caesarean intervention the surgeon performed the sterilization of the victim A.M. by the tubal ligation method. This occurred without the victim A.M. having been announced in advance and without her consent in writing. The procedure has resulted in the loss of her reproductive capacity. The next day the victim learned about the sterilization from the anaesthesiologist who also announced her husband.

Later, in 2007, a complaint was filed with the District Prosecutor’s Office in order to initiate criminal prosecution and hold accountable the medical staff that caused harm to the health of the victim A.M. (mother) and her son V.M. In 2007 the Prosecutor’s Office started a criminal case under Article 213 para. a) of the Criminal Code.

It is particularly outrageous that criminal prosecution on this criminal case was discontinued for at least five times since 2010. Under Criminal Procedure Code, these unfounded and illegal cessations and closings of criminal prosecution have been challenged at the victim’s request.

Several forensic examinations (more than six) were performed at different stages of the criminal prosecution.

In February 2008, at the request of the injured party, the General Prosecutor’s Office ordered the transfer of the criminal case from the regional prosecutor’s office to another territorial prosecutor’s office.

In the General Prosecutor’s Office letter, there was argued that this case was a complex one and the regional prosecutor’s office originally competent has already issued their findings on the case, so the measure of transferring the case file was necessary in order to ensure further conduct of the criminal prosecution in a more operative, complex and objective manner.

According to the project expert (a lawyer providing legal aid in the present case), the criminal prosecution body admitted delays in the criminal investigation of offences allegedly committed under Art. 213 of the Criminal Code, namely of the facts on serious bodily injury to the child at birth and sterilization of the mother A.M. at the same time. Thus, the limitation period for criminal liability has expired, which indicates that the rights of A.M. and D.M. have been violated.

In April 2016, the prosecutor decided again to cease the criminal prosecution of the suspect and close the case. Following the challenge of this ordinance under Art. 2991 and 2992 of the Criminal Procedure Code, the hierarchically higher prosecutor dismissed the victim’s complaint and upheld the contested measure. The prosecutor has argued that elements of any crime are missing in this case and also made reference to Art. 63 para. (2) p.3) of the Criminal Procedure Code, according to which the criminal prosecution body is not entitled to hold an individual under the suspect status for more than three months from the moment he/she was recognized as such by ordinance.

After these ordinances were appealed to the investigative judge according to Art. 313 of the Criminal Procedure Code, in June 2016 the investigating judge again declared null and void the ordinances of prosecutors, acknowledged the violation of the victims’ right to effective investigation within reasonable time and sent the materials to the Prosecutor’s Office for further investigation. The conclusion becomes final if either it is not challenged within the prescribed period (15 days), or it is endorsed by the Court of Appeal (the court empowered to examine any appeals against the investigating judge’s conclusion). The investigating judge has identified several violations and shortcomings regarding the investigation (lack of consistent references to the relevant material law, failure to identify a key witness, reasoning of ordinances on unconvincing doubts, especially concerning the alleged disappearance of the notice by which the victim would have declared her consent to sterilization, procedural deficiencies when hearing the suspect, delays in investigation, conclusions based on assumptions in delivered forensic reports etc.).

It is clear that the case identified / selected by the project experts as strategic litigation case, reflects a systemic problem, possibly at administrative unit level, in delivery of quality medical care in Moldova. This conclusion has been made because a case with similar facts took place previously in the same Stefan Voda District Hospital - namely the case that reached the European Court of Human Rights, G.B. and R. B. v. Moldova, application №16761/09, judgment of 18 December 2012. This case reflects a similar problem: in 2000, when the first applicant (G.B.) gave birth to a child, the head of the genecology department of the Stefan Voda District Hospital performed her caesarean. During the surgical intervention, he removed her ovaries and fallopian tubes without her consent. Following this intervention, the first applicant, who was 32 years old at that time, suffered an early menopause. At the end of the criminal trial, on 2 August 2005, the Supreme Court of Justice quashed the lower courts' judgments and adopted a new sentence, by which B. was found guilty but he was exempted from criminal liability because the statute of limitation for being held criminally liable intervened. However, at the end of a civil trial, the national courts offered the victims 1119 MDL for pecuniary damage, 10,000 MDL for non-pecuniary damage to the first applicant and 1237 MDL for the incurred costs. The hospital was also obliged to grant the applicant free medical treatment until 2020. But the European Court accepted the applicant's complaint and criticized the national courts because they only listed the general criteria according to legislation in force, but did not specify how these criteria were applied to the first applicant’s case and did not reason properly the awarding of that derisory amount of 607 EUR in respect of non-pecuniary damage. The only exception was the decision of the first court, according to which the award of a higher amount would affect the hospital's capacity to work further as a public health care institution. In the Court's view, such an argument is unacceptable, given the fact that the hospital was owned by the state and it (the state) was responsible for any charges arising in this regard. Thus, the amount of 607 EUR could not be a sufficiently fair satisfaction able to compensate the devastating effect of losing the reproductive capacity and the long-term health problems. In conclusion, the European Court has found that Article 8 of the Convention has been violated.

Taking into account the above circumstances, the project team decided to respond to the needs of the project beneficiary - the second applicant, suffered from human rights violation in the delivery of health care, namely from violation of her reproductive rights in the same Stefan Voda District Hospital - and to provide legal assistance in the framework of strategic litigation. Through this case, following the national and international procedures, obtaining of the relevant decision was expected, which could establish a model jurisprudential practice, and draw attention of national authorities to the identified systemic problem and to solve it, as well as prevent further violations. The strategy of this case may involve the need to file an application to the European Court of Human Rights.

[1] Radu Chiriță, Convenția europeană a drepturilor omului. Comentarii si explicatii, Bucuresti, Editura: C.H. BECK, 2008

[2] Council of Europe / European Court of Human Rights, Guide on Article 5 of the Convention Right to Liberty and Security, 2014

[3]Article 148. Additional Expert Reports and Counter Opinions

Should the criminal investigative body that ordered an expert report, at the request of one of the parties or ex officio, or the court, at the request of one of the parties, consider that the report is not complete, and such shortcoming cannot be repaired by hearing the expert, additional expertise may be requested from the same or a different expert.
If the conclusions of the expert are unclear, conflicting, not justified, if there are doubts about the conclusions and such shortcoming cannot be repaired by hearing the expert, or if any procedures were violated, a counter opinion may be ordered from a different expert or experts. The authenticity of previously applied methods may be analyzed during this investigation. The first expert may also participate in offering a counter opinion in order to provide explanations; however, he/she shall not participate in the investigations and the final conclusions.
The reasons for seeking expertise shall be specified in the order or ruling ordering the counter opinion.

[4] Article 177. Violation of Privacy

(1) Illegally collecting or deliberately disseminating legally protected information about personal life that is a personal or family secret of another person without his/her consent shall be punished by a fine of up to 300 conventional units or by community service for 180 to 240 hours.

(1¹) Illegally collecting the information mentioned in para. (1) without the consent of the person by use of special technical means designed to secretly access information shall be punished by a fine in the amount of 200 to 400 conventional units or by community service for 200 to 240 hours.

(2) The dissemination of the information mentioned in para. (1):

a) in a public speech through mass-media;
b) by deliberate use of an official position;

shall be punished by a fine in the amount of 200 to 500 conventional units or by the deprivation of the right to hold certain positions or to practice certain activities for 1 year or by community service work in amount of 180 to 240 hours, whereas the legal entity shall be punished by a fine in the amount of 1000 to 2000 conventional units.

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