CEDH · PRESS;CHAMBERJUDGMENTS;ENG — 2 juin 2009

.s800EAC49 { font-size:12pt } .sFE10DC93 { margin-top:0pt; margin-bottom:0pt; text-align:center } .s29100277 { font-family:Arial; font-weight:bold } .s40F41F73 { margin-top:0pt; margin-bottom:0pt; text-align:right } .s32563E28 { margin-top:0pt; margin-bottom:0pt } .sBB9EE52A { font-family:Arial } .s7ED160F0 { text-decoration:none } .s653E6C45 { font-family:Arial; font-size:6.67pt; vertical-align:super; color:#0069d6 } .s4DDA3AA3 { font-family:Arial; font-weight:bold; font-style:italic } .s3DC36BA9 { font-family:Arial; text-decoration:underline; color:#0069d6 } .sCB9E0544 { margin-top:0pt; margin-bottom:0pt; text-align:left } .sADADF4A7 { font-family:Arial; text-decoration:underline } .sC7EAD8B { font-family:Arial; font-weight:bold; text-decoration:underline } .sA36B60A1 { font-family:Arial; font-style:italic } .sF6A12959 { width:33%; height:1px; text-align:left } .s2EB42ED2 { margin-top:0pt; margin-bottom:0pt; font-size:10pt }   437 02.06.2009   Press release issued by the Registrar   CHAMBER JUDGMENT CODARCEA v. ROMANIA   The European Court of Human Rights has today notified in writing its Chamber judgment [1] in the case of Codarcea v. Romania (application no. 31675/04).   The Court held unanimously that there had been a violation of Article 6 (right to a fair hearing within a reasonable time) and, by six votes to one, that there had been a violation of Article 8 (right to respect for private and family life) of the European Convention on Human Rights on account of the ineffectiveness of the proceedings brought by the applicant before the Romanian courts seeking compensation for the adverse consequences she had incurred as a result of a series of medical errors committed by a State hospital.   Under Article 41 (just satisfaction) of the Convention, the Court unanimously awarded the applicant 20,000 euros (EUR) in respect of both pecuniary and non-pecuniary damage. ( The judgment is available only in French .)   1.     Principal facts   Elvira Codarcea, a Romanian national, was born in 1933 and lives in Târgu Mureş. She is a lawyer. On 4 June 1996 she was admitted to Târgu Mureş Hospital for the removal of an acrochordon on her lower jaw and a post-operative healing problem affecting her right thigh. Doctor B. recommended plastic surgery and performed a blepharoplasty (eyelid surgery). Mrs Codarcea had to be taken into hospital and operated on again, from 8 to 9 August 1996, because – following the blepharoplasty – her eyelids would not close. She was taken into hospital again from 20 to 21 August the same year and this time Dr B. performed a third blepharoplastry as well as more plastic surgery. These operations resulted in paralysis of the right side of her face and other adverse consequences, including neurasthenic depression, requiring specialist medical treatment. Several further operations had to be performed. On 5   June 1998 Mrs Codarcea instituted criminal proceedings as a civil party against Dr B. but the proceedings produced no result and were definitively closed by a decision of the Mureş County Court of 25 June 2004 ruling that the doctor’s criminal responsibility was now time-barred. On 18 October 2004 the applicant therefore brought civil proceedings against Dr B. and on 5 May 2005 also sued the hospital where she had been operated on. On 1 July 2005 the civil court held that Mrs Codarcea had been the victim of medical negligence and ordered the doctor to pay pecuniary and non-pecuniary damages. It dismissed the applicant’s action against the hospital, however, on the ground that the hospital could not be held liable for the actions of the doctor. After the case had gone right up to the High Court of Cassation, the proceedings were definitively disposed of on 18 April 2008, when the Târgu Mureş Court of Appeal upheld the applicant’s right to compensation. In the meantime, on 17 July 2006, enforcement proceedings had been issued against Dr B. by the Târgu Mureş Court of First Instance but had remained unsuccessful because the doctor had become insolvent on account of outstanding maintenance payments and a voluntary act of partition of real property he had concluded after judgment had been found against him.   2.     Procedure and composition of the Court   The application was lodged with the European Court of Human Rights on 9 August 2004. The admissibility and merits were examined at the same time.   Judgment was given by a Chamber of seven judges, composed as follows:   Josep Casadevall (Andorra), President , Elisabet Fura-Sandström (Sweden), Corneliu Bîrsan (Romania), Alvina Gyulumyan (Armenia), Egbert Myjer (the Netherlands), Ineta Ziemele (Latvia), Ann Power (Ireland), judges , and also Santiago Quesada , Section Registrar .   3.     Summary of the judgment [2]   Complaint   The applicant alleged that the proceedings she had instituted before the domestic courts on 5 June 1998 had been excessively long and accordingly contrary to Article 6 of the Convention. She complained, under Article 8, that the ineffectiveness of the proceedings had prevented her from securing fair compensation for the physical and psychological damage she had incurred as a result of medical negligence.   Decision of the Court   Article 6   The Court pointed out first of all that as the case concerned an action for damages in respect of personal injury sustained by a person who – at the beginning of the proceedings – was aged 65, the judicial authorities should have exercised special diligence. While acknowledging the complexity of the medical issues with which the domestic courts were faced, the Court considered that the period of nine years, six months and 23 days which had elapsed between 5 June 1998, when Mrs Codarcea instituted proceedings as a civil party seeking damages, and 18 April 2008, when the Târgu Mureş Court of Appeal gave the final decision in the case, was excessively long and had therefore resulted in a breach of Article 6.   Article 8   The Court reiterated that issues relating to a person’s physical and psychological integrity and their agreement to undergo medical treatment fell within the scope of Article 8. It pointed out that States parties to the Convention were under an obligation to introduce regulations compelling both public and private hospitals to adopt appropriate measures for the physical integrity of their patients. It also stressed that any patient should be informed of the consequences of a medical operation and be able to give or withhold their consent in full knowledge thereof. Where a patient had not been so informed, and the operation was performed in a public hospital, the State concerned could be held directly liable. In the present case the Court noted that Mrs Codarcea had had formal access to a procedure by which she was able to secure a finding of liability against the doctor who had operated on her and an order to pay her damages. However, it had not been possible to recover the amount awarded by the domestic courts because the doctor was insolvent and at the time there was no medical-negligence insurance scheme under Romanian law (the position has since changed).   The Court observed, lastly, that the Romanian courts had refused to recognise the liability of Târgu Mureş Hospital for the acts of its employee despite the fact that there was some authority in the case-law and legal doctrine to support a finding of liability. There had therefore been a violation of Article 8 on account of the applicant’s inability to obtain the compensation awarded her by a court decision for the consequences of the medical negligence of which she had been a victim.   Judge Myjer expressed a partly dissenting opinion, which is annexed to the judgment.   ***   The Court’s judgments are accessible on its Internet site ( http://www.echr.coe.int ).   Press contacts Stefano Piedimonte (telephone : 00 33 (0)3 90 21 42 04) Tracey Turner-Tretz (telephone : 00 33 (0)3 88 41 35 30) Paramy Chanthalangsy (telephone : 00 33 (0)3 88 41 28 30) Kristina Pencheva-Malinowski (telephone : 00 33 (0)3 88 41 35 70) Céline Menu-Lange (telephone : 00 33 (0)3 90 21 58 77)   The European Court of Human Rights was set up in Strasbourg by the Council of Europe Member States in 1959 to deal with alleged violations of the 1950 European Convention on Human Rights.   [1] Under Article 43 of the Convention, within three months from the date of a Chamber judgment, any party to the case may, in exceptional cases, request that the case be referred to the 17 ‑ member Grand Chamber of the Court. In that event, a panel of five judges considers whether the case raises a serious question affecting the interpretation or application of the Convention or its protocols, or a serious issue of general importance, in which case the Grand Chamber will deliver a final judgment. If no such question or issue arises, the panel will reject the request, at which point the judgment becomes final. Otherwise Chamber judgments become final on the expiry of the three-month period or earlier if the parties declare that they do not intend to make a request to refer. [2] This summary by the Registry does not bind the Court.