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PANAITESCU v. ROMANIA - 30909/06 [2012] ECHR 622 (10 April 2012)
URL: http://www.bailii.org/eu/cases/ECHR/2012/622.html
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[2012] ECHR 622
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THIRD
SECTION
CASE OF
PANAITESCU v. ROMANIA
(Application
no. 30909/06)
JUDGMENT
STRASBOURG
10
April 2012
This
judgment will become final in the circumstances set out in Article 44
§ 2 of the Convention. It may be subject to editorial revision.
In the case of Panaitescu v.
Romania,
The
European Court of Human Rights (Third Section), sitting as a Chamber
composed of:
Josep Casadevall,
President,
Alvina Gyulumyan,
Ján
Šikuta,
Ineta Ziemele,
Luis López
Guerra,
Nona Tsotsoria,
Mihai Poalelungi,
judges,
and Santiago Quesada,
Section Registrar,
Having
deliberated in private on 20 March 2012,
Delivers
the following judgment, which was adopted on that date:
PROCEDURE
The
case originated in an application (no. 30909/06)
against Romania lodged with the Court under Article 34
of the Convention for the Protection of Human Rights and Fundamental
Freedoms (“the Convention”) by a Romanian
national, Mr Ştefan Panaitescu (“the applicant”), on
16 June 2006.
The
applicant was represented by Ms F. L. Romosan, a lawyer practising in
Oradea. The Romanian Government (“the Government”)
were represented by their Agent, Ms I. Cambrea, of the Ministry of
Foreign Affairs.
3. The
applicant alleged, in particular, a breach of his rights guaranteed
by Articles 2 and 3 of the Convention.
The
applicant’s son, Mr Alexandru Leonard Panaitescu, informed the
Court by a letter of 16 April 2007 that his father had passed away
and, by a letter of 10 February 2010, that he as his father’s
legal heir wished to pursue the proceedings. For practical reasons Mr
Ştefan Panaitescu will continue to be
called “the applicant”, although his heir is now regarded
as having this status (see Dalban
v. Romania [GC], no. 28114/95, § 1,
28 September 1999).
On
14 December 2010 the application
was communicated to the Government. It was also
decided to rule on the admissibility and merits of the application at
the same time (Article 29 § 1).
6. As
Mr Corneliu Bîrsan, the judge elected in respect of Romania,
had withdrawn from the case (Rule 28 of the Rules of Court), the
President of the Chamber appointed Mr Mihai Poalelungi to sit as ad
hoc judge
(Article 26 § 4 of the Convention and Rule 29 §
1 of the Rules of Court).
THE FACTS
I. THE CIRCUMSTANCES OF THE CASE
Mr
Ştefan Panaitescu (“the applicant”) was a Romanian
national, born in 1944, who lived in Alejd, Bihor County. On 3
December 2006, he died and the application was continued by his son
Mr Alexandru Leonard Panaitescu.
A. Civil actions seeking the acknowledgement and
enforcement of the right to free medication and free medical
assistance under Law no. 189/2000
On
8 May 2002, the applicant filed an action against the Bihor County
Pensions Office seeking the annulment of a decision denying him the
benefit of Law no. 189/2000, which provided for damages and certain
facilities for persons persecuted by the Romanian authorities between
6 September 1940 and 6 March 1945 on ethnic grounds.
By a
decision of 3 June 2002, the Oradea Appeal Court found for the
applicant, ordering the defendant to award him the benefits provided
for in the above-mentioned Law. The decision became final on 28
January 2003.
Accordingly,
on 2 April 2003 the commission responsible for the enforcement of Law
no. 189/2000 issued a new decision confirming the applicant’s
status as a refugee and consequently as a beneficiary of that Law
from 1 April 2001; the decision confirmed that, inter alia,
the applicant was entitled to obtain priority free medical assistance
and medicines, both when hospitalised and as an outpatient.
On
20 April 2005, the applicant was diagnosed with cancer and on
4 May 2005, he underwent surgery at Oradea State Hospital
for the removal of a tumour on the right kidney. Following medical
tests, it was established that the tumour had reached stage III and
that the lung was also affected. According to the applicant, although
he was hospitalised in the oncology ward, the medical staff failed to
administer him specific oncological treatment and he was administered
only perfusions with vitamins and normal saline solution.
In
these circumstances, the applicant approached the Cluj Napoca
Oncological Institute.
On 16
September 2005, by a letter addressed to Oradea Hospital, Dr A.U.,
an oncologist from the Cluj Napoca Oncological Institute, confirmed a
partial remission of the illness in the applicant’s case, and
therefore recommended that he continue being treated with Avastin and
Roferon, which he had started at his own expense in July 2005. This
recommendation was later reiterated in a letter of 12 January 2006,
in which Dr. A.U also acknowledged that the Avastin medicine,
which had been administered to the patient twice a week from 1 July
2005, had been “procured and paid for in full by Mr. Panaitescu
during the entire period of treatment”.
However,
as he could not afford to continue indefinitely bearing the costs of
the treatment, which was financially burdensome, the applicant
notified the Bihor Health Insurance Service (Casa Judeţeană
de Asigurări de Sănătate Bihor – “the
CAS”) and the Bihor Public Health Office (Direcţia de
Sănătate Publică Bihor) accordingly on 22 and
18 August 2005 respectively and sent numerous requests to
the National Health Insurance Service (Casa Naţională de
Asigurări de Sănătate - “the CNAS”),
seeking to be granted the recommended drugs free of charge.
On 27
September 2005, through a local bailiff, he filed a notification with
the CNAS requesting, on the basis of the relevant legislation and
supporting documents, that funds be made available for the drugs
recommended by his oncologist, namely Roferon and Avastin. The
notification read as follows in its relevant part:
“I ask you to take into consideration that in case
of failure to grant my request, you will incur civil and criminal
liability for causing my death .... The director of the Bihor Public
Health Office, Dr M.A., has confirmed to me that you have rejected my
request. This fact is irrefutable proof of your guilt. ...
Considering the urgent nature of the case, I request a solution
within a maximum of ten days, any delay causing irreversible trauma,
and after the expiry of that term, I shall be obliged to apply for an
injunction in this regard and to initiate criminal proceedings
because any refusal is tantamount to murder. I enclose the documents
certifying my right and your obligation according to the Law
governing the organisation of CNAS, the sole institution able to
guarantee my right to life on the State’s behalf.”
The
applicant addressed numerous other petitions to the relevant
institutions, including the Government of Romania, but to no avail.
In
addition, “in order to illustrate the distress he was
suffering” the applicant informed the Court that since he was
unable to pay for the drugs, he had applied to the Hamburg University
Clinic, on the basis of a recommendation made by Dr A.U., to be
included in the experimental trials of Bayer Concern for a new drug
called Nexavar. On 18 May 2006, the applicant signed a
contract with the aforesaid institution and started receiving
treatment with Nexavar, which obliged him to be present at the clinic
once every two months. No other information regarding the execution
of that contract was submitted.
B. Actions to oblige the CNAS and the CAS to provide
him with specific treatment
On 10 November 2005 the applicant brought a liability
action against the CNAS and the CAS, requesting the Oradea Court of
Appeal to order the defendants to provide him with the medicines
Roferon and Avastin free of charge and with priority for the period
recommended by his doctors, as well as with any other drugs
prescribed by his doctors; he also asked to be reimbursed the cost of
the drugs already paid for by him from July 2005 to date. He
requested the court to notify the relevant institutions that their
failure to do so would have the civil and criminal consequences of
putting his life at risk.
By a
judgment of 12 December 2005, the Oradea Appeal Court allowed the
applicant’s claims. On the basis of medical documents and an
opinion which attested to a remission of the illness after the use of
the drugs Avastin and Roferon taken together, the court ordered the
CNAS and the CAS to provide the applicant with the two requested
drugs free of charge and with priority for the period recommended by
the doctors, together with any other medicines prescribed by the
doctors; it also ordered them to reimburse the applicant the cost of
the medicines prescribed by the doctors borne so far by the applicant
himself.
The
court dismissed the CNAS’s defence that according to Government
Decision no. 235/2005 the applicant could not be provided with
Avastin free of charge, in so far as the drug Avastin was not on the
list of drugs available to outpatients and therefore could not be
subsidised from the National Health Insurance Fund (“the
FNUASS”). The court argued that any list of medicines is
susceptible of being amended all the time; otherwise, the use of any
new drug proved to have positive effects on the evolution of cancer
would be impossible for at least one or two years after it became
available owing to administrative barriers and logistical formalities
meant to ensure that its cost could be reimbursed by the FNUASS; this
delay would have only negative repercussions for the health of the
population. Furthermore, the court held that in so far as in the
applicant’s case there was no other drug available as a
replacement for Avastin, and considering that failure to use it would
have repercussions for the evolution of his illness, the State
authorities should have made it possible to have Avastin rapidly
included on the list of reimbursable drugs.
The CNAS and the CAS contested that judgment before
the High Court of Cassation and Justice, mainly arguing that the
first-instance court was asking them to reimburse the applicant the
cost of medicines that were not included on the list of reimbursable
drugs. For the same reason, Avastin could not be provided free to the
applicant.
On 19
April 2006, the High Court of Cassation and Justice dismissed the
appeal and upheld the first-instance court’s judgment. The
court held that the appellants’ contention that the applicant
had been treated free of charge with Intron A (the equivalent of
Roferon) from November 2005 until April 2006 was not supported
by evidence and, in any event, that period did not cover the entire
time during which the applicant should have been provided with
medication free of charge.
At
the same time, noting that the Avastin had already been approved by
the National Medicines Agency in June 2005, the court considered that
nothing prevented the appellants to have initiated legal procedures
to have Avastin included on the list of reimbursable medicines
starting with that moment, especially having in mind that no other
equivalent of Avastin with similar therapeutical effects was included
on that list.
On
23 May 2006 the applicant wrote to the CAS requesting the urgent
enforcement of that final judgment, arguing that the remission of the
illness had ceased and the illness had even worsened on account of
the delays caused by the passivity of the State authorities. He also
invoked Article 2 of the Convention, requesting the protection of his
right to life.
By
a letter of 5 September 2006 the applicant informed the Court that
the judgment had not been enforced; moreover, he submitted that the
CAS had no intention of complying with the final judgment, as proved
by the fact that they had contested its enforcement and also lodged
an extraordinary appeal, requesting that it be set aside (see
paragraphs 17-18 below).
He
further stated that the drug Roferon had been replaced by Intron,
which he had stopped taking in September 2006 as it caused side
effects and because the medical tests showed that the cancer had
spread since he had been taking that drug. The applicant also
informed the Court that on 1 August 2006 the ordinary
treatment with cytostatics had been stopped with no explanation.
The
applicant also submitted the results of medical tests carried out
during his treatment with Avastin and Roferon, dated
16 September 2005, which confirmed that the disease was in
partial remission, and blood test results dated 3 March 2006, after
the treatment had ceased, which allegedly attested to an aggravation
of the illness.
On
6 June 2006, the CAS contested the enforcement of the judgment of 12
December 2005, which had become final on 19 April 2006, alleging that
the institution could not provide the applicant with the requested
medicine, since it was not entitled to buy and sell drugs and
medicine. Moreover, their relationship with pharmacies was one of
cooperation, and not one of subordination, consequently they could
not oblige them to provide the requested medicines to the applicant
free of charge.
Concerning
the applicant’s pecuniary claims, the CAS considered that
although the evidence submitted by the applicant proved that some
medication had been bought from abroad, the amounts of money paid
were unspecified, and thus they were not able to make any payment in
that regard. The CAS also asked that the enforcement of the disputed
judgment be suspended pending the contestation proceedings.
The
applicant’s son informed the Court that those proceedings had
ended on 22 March 2010, when the contestation was dismissed in a
final judgment; the CAS submitted that the pecuniary claims had
become
time-barred, while the obligation to provide the applicant
with the medicine in question had been left without any object
following the applicant’s death.
The
CAS also informed that their extraordinary appeal against the
disputed judgment (see paragraph 16 above) had also been dismissed by
the High Court of Cassation and Justice
No
copy of any judgment allegedly given in these proceedings was
submitted.
II. RELEVANT DOMESTIC LAW
Law
no. 189/2000 provides for damages for persons persecuted on ethnic
grounds who are refugees from the territories occupied during the
Second World War. Section 5 (a) provides that persons whose cases are
regulated by sections 1 and 3 “shall benefit from priority free
medical care and drugs, both as outpatients and when hospitalised.”
Government
decision no. 627/2005 amends decision no. 235/2005 regarding the
approval for the year 2005 of the list of drugs from which insured
persons being treated as outpatients, with or without a personal
contribution, could benefit on the basis of a medical prescription.
The persons concerned by the special laws, who were entitled to free
medication paid for by the National Health Insurance Fund, were
entitled to full reimbursement of the cost of all the medicines
included on the list. Avastin was not included on the list.
THE LAW
I. ALLEGED VIOLATION OF ARTICLES 2 AND 3 OF THE CONVENTION
The
applicant complained that the State institutions, by “cynically
and abusively” refusing to enforce the final court decisions
granting him the appropriate medical treatment for his terminal
disease free of charge, put his life at risk, which also constituted
inhuman treatment, in breach of Articles 2 and 3 of the
Convention.
In so
far as relevant, the Articles relied on by the applicant read as
follows:
Article 2
“1. Everyone’s right to life shall be
protected by law. No one shall be deprived of his life intentionally
save in the execution of a sentence of a court following his
conviction of a crime for which this penalty is provided by law. ...”
Article 3
“No one shall be subjected to torture or to
inhuman or degrading treatment or punishment.”
A. Admissibility
The
Government contested the applicant’s allegations.
The
Court notes that the complaints are not manifestly ill-founded within
the meaning of Article 35 § 3 (a) of the Convention. It further
notes that they are not inadmissible on any other grounds. They must
therefore be declared admissible.
B. Merits
Having
regard to the circumstances of the present case, and more
particularly to the applicant’s death pending the proceedings
before this Court, the complaints will be examined firstly from the
standpoint of Article 2 of the Convention, before an assessment
is made of whether it is necessary to address them under Article 3
also (see Gagiu v. Romania, no. 63258/00, § 54,
24 February 2009).
1. The parties’ submissions
The
Government relied on the information submitted by the CNAS and the
CAS, which revealed that the applicant had been provided with free
medication, namely Intron A, identical to Roferon, for the periods
between November 2005 and April 2006 and May and October 2006.
Besides Intron A, the applicant had received other medication
free of charge from 1 December 2005 until his death, such
as Preductal, Enalapril, Betaloc, Ampiciline, Trimetazidine,
Neorecormon, Controloc, Tramadol etc. He had also, while
hospitalised, received appropriate medical care.
In so
far as Avastin had been included on the list of reimbursable drugs
only from December 2006, it had not been possible to grant it to the
applicant free of charge before that date.
The
Government thus contended that the State’s obligation to
protect the applicant’s health by providing him with the
required medical services and appropriate free medication had been
fulfilled.
Furthermore,
there was no link between the applicant’s death and the acts or
omissions of the State authorities, the applicant not having provided
any medical document to support such a finding.
Moreover,
according to the Court’s case-law, where a Contracting State
has made adequate provision for securing high professional standards
among health professionals and the protection of the lives of
patients, the Court does not accept that matters such as error of
judgment on the part of a health professional or negligent
coordination among health professionals in the treatment of a
particular patient are sufficient of themselves to call a Contracting
State to account from the standpoint of its positive obligations
under Article 2 of the Convention to protect life (see, among many
others, Byrzykowski v. Poland, no. 11562/05, § 104, 27
June 2006).
Having
regard to the fact that most of the medical treatment recommended by
the doctors had been provided free of charge to the applicant for the
above-mentioned periods of time, his complaint that he had been
submitted to inhuman and degrading treatment was not substantiated.
The
applicant’s complaints under Articles 2 and 3 were therefore
ill-founded.
The
applicant contended that the two drugs recommended by the specialist
doctors, namely Roferon and Avastin, which were essential for
successful treatment, needed to be administered concomitantly, and
not alternately; this issue had been confirmed by medical
correspondence attesting to a remission of the disease in the
applicant’s case as a result of the concomitant administration
of both drugs for a specific period of time.
Therefore,
although Intron A had been administered to the applicant free of
charge, albeit not for the whole duration of the treatment and only
after strenuous efforts on his behalf, it had not had the expected
positive effects inasmuch as it had not been permanently combined
with Avastin. As the latter drug had not been provided to the
applicant by the State authorities, he had procured it at his own
expense for as long as he could afford it, namely for only a few
months (July to December 2005), since Avastin was an expensive
medicine.
In
view of the medical documents, which proved that there had been a
remission of the disease following the concomitant administration of
both drugs recommended by the doctors, and having regard also to the
domestic courts’ judgments upholding the applicant’s
right to be granted those medicines free of charge, the causal link
between the applicant’s death and the State authorities’
failure to comply with their obligations was
self-evident.
Furthermore, the authorities’ wrongful refusal to enforce the
judgments, in spite of the fact that they were aware of the
applicant’s deteriorating health, had subjected him to deep
psychological suffering in breach of Article 3 of the Convention.
2. The Court’s assessment
The
Court observes that the first sentence of Article 2 imposes a
positive obligation on Contracting Parties. The States’
obligation to protect the right to life is not limited to refraining
from taking life intentionally and unlawfully but also implies the
duty to take appropriate steps to safeguard the lives of those within
its jurisdiction (see L.C.B. v. the United Kingdom,
9 June 1998, § 36, Reports of Judgments and
Decisions 1998-III).
The
Court has accepted that it cannot be excluded that the acts and
omissions of the authorities in the field of health care policy may
in certain circumstances engage their responsibility under Article 2.
However, where a Contracting State has made adequate provision for
securing high professional standards among health professionals and
the protection of the lives of patients, it cannot accept that
matters such as error of judgment on the part of a health
professional or negligent co-ordination among health professionals in
the treatment of a particular patient are sufficient of themselves to
call a Contracting State to account from the standpoint of its
positive obligations under Article 2 of the Convention to protect
life (see Powell v. the United Kingdom (dec.), no. 45305/99,
ECHR 2000-V, and Öneryıldız v. Turkey [GC], no.
48939/99, § 71, ECHR 2004-XII).
The
Court reiterates that its approach to the interpretation of Article 2
is guided by the idea that the object and purpose of the Convention
as an instrument for the protection of individual human beings
requires its provisions to be interpreted and applied in such a way
as to make its safeguards practical and effective (see, for example,
Yaşa v. Turkey, 2 September 1998,
§ 64, Reports of Judgments and Decisions 1998-VI).
In
the instant case the complaint before the Court is that the national
authorities did not do all that was expected of them, not only by the
applicant, but also by the domestic courts (see paragraphs 13-14
above), who ordered them to provide the applicant with the necessary
medication to treat the disease which finally led to his death.
The
Court’s task is, therefore, to determine whether, given the
circumstances of the case, the State did all that could have been
required of it to prevent the applicant’s life from being
avoidably put at risk by timely providing him with appropriate health
care (see, mutatis mutandis, L.C.B., cited above, §
36). In its assessment of this issue, the Court considers that it
must be guided by the due diligence test, since the State’s
obligation in that respect is one of means, not of result. Notably,
the mere fact of a deterioration of the applicant’s state of
health, could not suffice, as such, for a finding of a violation of
the State’s positive obligations under Articles 2 or 3 of the
Convention, if, on the other hand, it can be established that the
relevant domestic authorities have in timely fashion resorted to all
reasonably possible medical measures in a conscientious effort to
hinder development of the disease in question (see, mutatis
mutandis, Aleksanyan v. Russia, no. 46468/06, §
139, 22 December 2008).
The
Court firstly notes that on the basis of Law no. 189/2000 the
applicant was entitled to free medication and medical assistance, to
be provided to him with priority. This right was acknowledged by the
domestic courts in the proceedings culminating in the judgment of 3
June 2002 and then confirmed by the commission that issued the
decision of 2 April 2003 recognising the applicant’s
entitlement to the relevant rights from 1 April 2001 (see
paragraph 8 above).
The
same right was confirmed in the proceedings lodged by the applicant
in 2005 in connection with the recommended anticancer treatment. The
domestic courts, both at first instance and on appeal, held in favour
of the applicant and ordered the defendants, State authorities, to
provide him with the prescribed anticancerous medication and
reimburse him any costs that he had incurred for such medicine;
furthermore, the courts dismissed the defendants’ argument
according to which Avastin had not been provided because it was not
on the list of reimbursable medicines, having regard also to the fact
that the drug had not been replaced by any equivalent one.
It
follows that, in the present case the applicant’s access to
free medical care, as he was entitled, was more than once hindered,
as he needed to make constant and repeated efforts to be granted the
requisite anticancerous medical treatment free of charge. For a
while, he bore the cost of the treatment, despite the final judgments
conferring on him the right to be granted the prescribed medicines
free of charge and with priority.
The
delayed and partial enforcement of the judgment of 12 December 2005
ordering the State authorities to grant him free of charge the drugs
recommended by his doctors coincided with a deterioration in his
health, especially once the applicant could no longer afford to bear
the cost of the treatment personally. This deterioration culminated
in the death of the applicant, on 3 December 2006.
In
the light of the foregoing, the Court considers that the applicant’s
reasons to request something which the medical experts had prescribed
him and for which he did not have to pay, according to the domestic
courts’ ruling, could not be said to have been whimsical.
The
Court further notes that in spite of the fact that the applicant was
entitled to be provided with medicines free of charge, that right was
repeatedly contested, mainly on bureaucratic grounds (see also
paragraphs 13-14 above), with the result that he was not able to
properly pursue his prescribed treatment; furthermore, in spite of
the fact that the domestic courts found no justification for State
authorities’ conduct, the required treatment was still not
provided to the applicant in due time, as required by the gravity of
his illness.
The
Court further considers in this connection that, just as it is not
open to a State authority to cite lack of funds or resources as an
excuse for not honouring a judgment debt (see, mutatis mutandis,
Burdov v. Russia, no. 59498/00, § 35, ECHR
2002-III), the same principle applies a fortiori when there is
a need to secure the practical and effective protection of the right
protected by Article 2, a right fundamental in the scheme of the
Convention.
Hence,
while being aware of the serious and complex nature of the illness
the applicant was suffering from, the Court cannot ignore that,
according to the available medical information, the recommended drugs
proved to have positive effects for as long as they were
administered, and that the doctor noted a “partial remission of
the illness” while the treatment was taken; is why the Court
considers that the State authorities were or ought to have been aware
of the need for appropriate treatment in the applicant’s case,
in the lack of which a real and immediate risk to the applicant’s
life existed. This aspect was also revealed by the domestic courts’
conclusions. Yet, the authorities failed to take timely measures
within the scope of their powers that might have been, and indeed
were, expected of them, as confirmed by the judgment of 12 December
2005, to avoid that risk. Therefore, the Court cannot rule out that
the State’s failure to provide the applicant with appropriate
medical treatment has contributed to an aggravation of his disease.
The
Court thus holds that in the very particular circumstances of the
present case, the State failed to prevent the applicant’s life
from being avoidably put at risk by not providing him the appropriate
health-care as ordered by the national courts, in breach of its
procedural obligations under Article 2 of the Convention.
Having
regard to the facts of the case, the submissions of the parties and
its finding of a procedural violation of Article 2 (see
paragraphs 34-37 above), the Court considers that it has
examined the main legal questions raised in the present application.
It concludes, therefore, that there is no need to examine whether
there has also been a violation of Article 3 of the Convention (see,
for example, Kamil Uzun v. Turkey, no. 37410/97, § 64,
10 May 2007; and Gagiu, cited above, § 73).
II. OTHER ALLEGED VIOLATIONS OF THE CONVENTION
The
applicant also complained under Article 14 of the Convention of
discrimination, comparing his case to that of other beneficiaries of
the special laws, such as police officers, prosecutors, magistrates,
State officials, and parliamentarians, whose rights were always
respected since they were considered substantially more important
than he was. Article 14 reads as follows:
“The enjoyment of the rights and freedoms set
forth in [the] Convention shall be secured without discrimination on
any ground such as sex, race, colour, language, religion, political
or other opinion, national or social origin, association with a
national minority, property, birth or other status.”
The
Court finds that the applicant has failed to substantiate his
allegation that he was subjected to discriminatory treatment on the
ground of his social status. It follows that this complaint is
manifestly ill-founded and must be rejected in accordance with
Article 35 §§ 3 and 4 of the Convention.
III. APPLICATION OF ARTICLE 41 OF THE CONVENTION
Article 41 of the Convention provides:
“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 reparation to be made, the Court shall, if necessary, afford
just satisfaction to the injured party.”
A. Damage
In
respect of pecuniary damage, the applicant claimed 52,832 Euros
(EUR), representing the money he had already paid for procuring the
necessary medication (roughly EUR 5,000) and the money he would have
paid if he had obtained Avastin for twelve months at his own expense
(EUR 48,000). The applicant further claimed EUR 850,000 in
respect of non-pecuniary damage.
The
Government did not contest the amount claimed in respect of pecuniary
damage, inasmuch as it was supported by documents and related to
money already paid by the applicant for procuring the medicines from
July to December 2005. As regards non-pecuniary damage, the
Government considered that the amount claimed was unjustifiably high
and asked for an assessment on an equitable basis in accordance with
the case-law of the Court in the matter.
The
Court does not consider the alleged pecuniary damage to be fully
substantiated, but it does not find it unreasonable to suppose that
the applicant certainly incurred costs that were directly due to the
violation found. It also takes the view that, as a result of the
violation found, the applicant undoubtedly suffered non-pecuniary
damage that cannot be repaired merely by the finding of a violation.
Consequently,
having regard to the circumstances of the present case seen as a
whole, and deciding on an equitable basis, the Court awards the
applicant EUR 20,000 in respect of the pecuniary and non-pecuniary
damage sustained, plus any tax that may be chargeable.
B. Costs and expenses
The
applicant did not claim the reimbursement of any costs and expenses.
C. Default interest
The Court considers it appropriate that the default
interest rate should be based on the marginal lending rate of the
European Central Bank, to which should be added three percentage
points.
FOR THESE REASONS, THE COURT UNANIMOUSLY
Declares the complaints under Articles 2 and 3
of the Convention admissible and the remainder of the application
inadmissible;
Holds that there has been a violation of the
procedural aspect of Article 2 of the Convention;
Holds that there is no need to examine the
complaint under Article 3 of the Convention;
Holds
(a) that
the respondent State is to pay Mr Alexandru Leonard Panaitescu,
within three months of the date on which the judgment
becomes final in accordance with Article 44 § 2 of the
Convention, EUR 20,000 (twenty thousand Euros), plus any
tax that may be chargeable, in respect of pecuniary and non-pecuniary
damage, to be converted into the national currency at the rate
applicable on the date of settlement;
(b) that
from the expiry of the above-mentioned three months until settlement
simple interest shall be payable on the above amount at a rate equal
to the marginal lending rate of the European Central Bank during the
default period plus three percentage points;
Dismisses the remainder of
the applicant’s claim for just
satisfaction.
Done in English, and notified in writing on 10 April 2012, pursuant
to Rule 77 §§ 2 and 3 of the Rules of Court.
Santiago
Quesada Josep Casadevall Registrar President
