issued by the Registrar of the Court

ECHR 152 (2012)

10.04.2012

State should have acted in order to protect the life of a cancer

patient
In today’s Chamber judgment in the case Panaitescu v. Romania (application
no. 30909/06), which is not final1, the European Court of Human Rights held, unanimously,
that there had been:

A violation of Article 2 (right to life) of the European Convention on Human Rights.

The case concerned the applicant’s complaint about the Romanian authorities’ failure to
provide him with specific anti-cancerous medication for free.

The Court found that the State should have provided the applicant with the anti-cancerous
medication he needed free of charge, in accordance with the domestic courts’ judgments.

Principal facts
The applicant, Ştefan Panaitescu, was a Romanian national, born in 1944, who lived in
Alejd, Bihor County (Romania). Following his death in December 2006, his application was
continued by his son, Alexandru Panaitescu.

In June 2002 the Romanian courts ruled that Ştefan Panaitescu should be entitled to
benefits under a law on damages for those who had been persecuted between 1940 and
1945 on ethnic grounds. Part of those entitlements was priority free medication and
medical assistance.

Ştefan Panaitescu was diagnosed with cancer in April 2005 and had a tumour removed
from his kidney in May that year in a state hospital. In so far as he was only administered
vitamins and normal saline solution, but not the specific anti-cancerous treatment he
needed, Mr Panaitescu turned to the Cluj Napoca Oncological Institute which recommended
his continued treatment with two drugs he had started taking in July 2005 at his own
expense.

As he could not afford to continue paying for his treatment, Ştefan Panaitescu asked the
health insurance service on numerous occasions to grant him the two specific drugs he
needed free of charge. He also turned to many other institutions, to no avail.

In addition, Ştefan Panaitescu informed the Court that, since he was not able to continue
paying for the medication he needed, he had signed up as a patient in experimental trials
for a new drug administered to him in Hamburg once every two months.

In November 2005, Ştefan Panaitescu brought proceedings against the national health
authorities claiming the two specific drugs for free, as well as the reimbursement of the
costs he had already incurred for their purchase. The courts granted both of his claims in a

1 Under Articles 43 and 44 of the Convention, this Chamber judgment is not final. During the three-month
period following its delivery, any party may request that the case be referred to the Grand Chamber of the
Court. If such a request is made, a panel of five judges considers whether the case deserves further
examination. In that event, the Grand Chamber will hear the case and deliver a final judgment. If the referral
request is refused, the Chamber judgment will become final on that day.
Once a judgment becomes final, it is transmitted to the Committee of Ministers of the Council of Europe for
supervision of its execution. Further information about the execution process can be found here:
www.coe.int/t/dghl/monitoring/execution
judgment of 12 December 2005 which became final in April 2006. The health authorities
contested the enforcement of that judgment, unsuccessfully.

Complaints, procedure and composition of the Court

Relying on Article 2 and Article 3 (prohibition of inhuman or degrading treatment),
Mr Alexandru Panaitescu notably alleged that the authorities had cynically and abusively
refused to enforce final court decisions acknowledging his father's right to appropriate free
medical treatment, and that that had not only put his father’s life at risk, but had caused
him deep psychological suffering.

The application was lodged with the European Court of Human Rights on 16 June 2006.

Judgment was given by a Chamber of seven, composed as follows:

Josep Casadevall (Andorra), President,
Alvina Gyulumyan (Armenia),
Ján Šikuta (Slovakia),
Ineta Ziemele (Latvia),
Luis López Guerra (Spain),
Nona Tsotsoria (Georgia),
Mihai Poalelungi (Moldova), Judges,

and also Santiago Quesada, Section Registrar.

Decision of the Court

Right to life (Article 2)

The Court recalled that, under the Convention, States were not only prohibited from taking
people’s lives unlawfully, but were also obliged to act in order to protect the life of those
within their jurisdiction.

It then noted that Ştefan Panaitescu had been entitled under the relevant law to receive
free medication and medical assistance with priority. That right had been acknowledged by
the domestic courts in a June 2002 judgment. It had also later been confirmed by another
judgment of December 2005, in which the court ordered the State authorities to provide
him with the prescribed anti-cancerous treatment and reimburse him any costs that he had
incurred for that medication.

The delayed and only partial enforcement of the December 2005 judgment had coincided
with the deterioration in his health, especially when he could no longer afford to pay for
the treatment. His health had worsened further and culminated in his death in December
2006.

Although he had been entitled to receive the necessary medication for free, this right had
been repeatedly contested by the health authorities, mainly on bureaucratic grounds. As a
result, he had been unable to properly continue his treatment, as the authorities had not
provided it to him despite his grave and advanced illness.

The Court emphasised that just as States could not cite the lack of funds as an excuse for
not enforcing a judgment in favour of third parties, the same applied when there was the
need for a State to protect, practically and effectively, people’s lives.

The Court was also mindful of the fact that the recommended drugs had had positive
effects on Ştefan Panaitescu for as long as they had been given to him. Consequently, the

2
State authorities had been, or should have been, aware that, if not treated properly, there
was a real and immediate risk to his life. That had also been the conclusion of the domestic
courts. However, the authorities had failed to act to the extent that they could and should
have done to avoid that risk. Therefore, the Court could not exclude that the State’s failure
to provide appropriate treatment to Ştefan Panaitescu had contributed to an aggravation of
his disease.

Consequently, the Court concluded that, in the circumstances, the State had failed to
prevent the risk to Ştefan Panaitescu’s life by not providing him with the appropriate
health-care as ordered by the national courts.

There had, therefore, been a violation of Article 2.

Other articles
The Court held that, in view of its finding under Article 2, it was not necessary to examine
the complaint also under Article 3.

Just satisfaction (Article 41)

The Court held that Romania was to pay the applicant 20,000 euros (EUR) in respect of
pecuniary and non-pecuniary damage.

The judgment is available only in English.

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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.