CASE OF PANAITESCU v. ROMANIA
Remainder inadmissible;Violation of Article 2 - Right to life (Article 2-1 - Life) (Procedural aspect);Pecuniary and non-pecuniary damage - award
Alvina Gyulumyan;Corneliu Bîrsan;Ineta Ziemele;Ján Šikuta;Josep Casadevall;Luis López Guerra;Mihai Poalelungi;Nona Tsotsoria
7. 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. 8. 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. 9. 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. 10. 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”. 11. 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. 12. 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. 13. 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. 14. 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. 15. 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. 16. 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. 17. 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. 18. 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. 19. 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.” 20. 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.