RECOGNITION OF A PERSON’S IDENTITY BY COURT AFTER FORTY YEARS

IDOM has successfully completed the case of a man with disabilities who had spent 40 years of his life in the Psycho-Neurological Boarding House of Brînzeni without having a birth certificate or identity card.

IDOM took over the case at the request of the Civic Association Keystone Moldova who had communicated that the 48 years old G.V. was to be reintegrated in the society and was being prepared for life in the community but due to not having civic status documents (birth certificate, identity card), his community reintegration could not be implemented.

At the pretrial stage, Keystone and IDOM only had a piece of information according to which G.V. was born in 1969 in the village of Recea, district of Strășeni; however, no such person was identified in the archives of civil status acts. Alleged relatives were identified in the village of Recea as well as witnesses who claimed that a child named G.V. (whose parents had died long ago) at 9 years old was placed in a children’s boarding school due to his disability and that nobody had ever heard of him since then.

In the absence of civic status acts that would have confirmed G.V.’s identity it became necessary to have G.V.’s birth established by a certain person by judicial means, which led to filing an action in court in special proceedings.

During the examination of the case, due to the new acts found and presented by interested persons (Mayor’s Office, Civil Status Office) as well as based on the statements made by the witnesses summonsed and heard), it was possible to prove that G.V. was in fact born on a different date and year and had a different name (G.S.) but that for unknown reasons, at the age of 9, upon his placement in the Brînzeni Social House, a different name, birth date, month and year was indicated for him.

The Strășeni District Court ruled on 31 Oct 2018 to admit the action and find a fact with legal value – that G.V. and G.S. were the same person. Based on this court judgment, the petitioner will be able, without any legal impediments, to request the issue of a birth certificate and then make an identity card.

IDOM has also found that regretfully there are tens of other persons in the country’s social houses who identities are not known and this creates legal impediments during their integration in the society and their enjoyment of all the rights confined by the law. In this connection, it is necessary for the administrations of the institutions where such persons are placed to get involved actively in starting legal proceedings for establishing their identities.

The petitioner’s interests were represented in court by the lawyer Olesea  Doronceanu of the Litigation and Advocacy Program of IDOM.

Hotărîre

 

IDOM Organizes TRAINING OF TRAINERS IN COMBATTING HATE CRIMES

According to the Cooperation Agreement between General Police Inspectorate (GPI) and IDOM of 6 October 2016 and thanks to the financial support provided by Konrad Adenauer Stiftung, based in Bucharest, and by Sweden, IDOM carries out monitoring of the conditions of detention of persons held in police custody, training, strategic litigation, and monitoring of psycho-neurological boarding houses and psychiatric hospitals in how they respect the rights of persons with disabilities.

On 18 December 2017, the Republic of Moldova was condemned by the UN Committee for the Elimination of Racial Discrimination for its failure to investigate racial hate crimes efficiently and for an ineffective remedy before the national courts. In its observations of 12 May 2017 on Moldova’s report on the observance and implementation of the Convention for the Elimination of Racial Discrimination, the Committee recommended the state to carry out training programs for police officers, judges, lawyers and state officials, including specialized trainings for the prevention of racial discrimination and the rights confined in the Convention. At the same time, the Committee requested the state to supply detailed information and updated statistics in its following periodical report on such training programs and their impact on the situation of ethnical minorities.

Under the project “Strengthening Police Capacity to Combat Hate Crimes,” IDOM aims to provide support to the Police in view of enhancing its training capacity in the area of hate crimes.

In this sense, between 8 and 11 October 2018, IDOM organized a training of trainers in combating hate crimes. The training took place at the tourist resort ODISEU, located in the town of Vadul lui Vodă, and the trainers were Nicolae Crețu and Isvan Haller. The event was attended by 18 persons who are involved in providing initial and continuous training to police officers from the Ministry of Interior (MI), CIPAL, GPI and Police Academy. It tackled such subjects as hate crimes, ECHR caselaw and the international standards, knowledge and ice breaking techniques, the general structure of a training session, debriefing techniques, adult motivation techniques in training activities, GPP and other techniques, learning process stages, techniques of monitoring participants’ understanding and attention during presentations, and techniques for applying and analyzing the information presented and the learning process stages. At the end, Vanu Jereghi, Executive Director of IDOM, handed over participation certificates and thanked the MI and GPI leaderships for their inputs in the activities carried out so far, expressing his conviction about the potential and perspectives of fruitful cooperation in the future.

    

    

    

     

     

     

     

    

    

    

     

     

   

   

    

     

     

     

   

     

    

    

    

     

     

     

     

    

AT IDOM’S REFERRAL, TODAY CONSTITUTIONAL COURT DECLARED ARTICLE 13 PARA (1) LETTER B) OF THE ELECTION CODE (PERSONS WITH MENTAL DISABILITIES DECLARED INCAPACITATED MAY NOT VOTE) UNCONSTITUTIONAL

IDOM had made a referral to the Constitutional Court through its lawyers Alexandru Cebanaș and Dumitru Russu, and today, 11 October, the Constitutional Court has declared article 13 para.(1) letter b) of the Election Code (persons with mental disabilities declared incapacitated may not vote) unconstitutional.

In fact, during the presidential elections of 30 Oct 2016, a person could not vote because Art.13 para.1 letter b) of the Election Code provided for restrictions for the persons with mental and intellectual disabilities. Article 4 para.(2) of the Constitution sets out: “Wherever disagreements appear between the conventions and treaties on fundamental human rights to which the Republic of Moldova is a party and its domestic laws, priority shall be given to international regulations.”

Guidelines must be clearly extracted from article 29 of the Convention on the Rights of Persons with Disabilities (CRPD) and recently reaffirmed (2014) in the General Commentary no.1 by the UN Committee. The same principles are also reiterated in Resolution 1642 (2009) of the Parliamentary Assembly of the Council of Europe on the access to rights by persons with disabilities and their full and active participation in the society. In this sense, the members of the European Parliament requested the member states of the Council of Europe to adopt the necessary measures “to ensure that, in accordance with the UN Convention on the Rights of Persons with Disabilities, the persons under guardianship are not deprived of their fundamental rights (not even of the right to vote), and if they need outside assistance with exercising their rights, they are offered proper support, without having their wishes or intentions ignored.”

According to Article 29 of the Convention – Participation in political and public life “States Parties shall guarantee to persons with disabilities political rights and the opportunity to enjoy them on an equal basis with others, and shall undertake: (a) To ensure that persons with disabilities can effectively and fully participate in political and public life on an equal basis with others, directly or through freely chosen representatives, including the right and opportunity for persons with disabilities to vote and be elected, inter alia […]”

The purpose declared by the CRPD, according to its article 1, is to promote, protect and ensure the full and equal enjoyment of all human rights and fundamental freedoms by all persons with disabilities, and to promote respect for their inherent dignity. Persons with disabilities include those who have long-term physical, mental, intellectual or sensory impairments which in interaction with various barriers may hinder their full and effective participation in society on an equal basis with others. Without infringing on the interpretation made by the Human Rights Committee of article 25 of the PIDCP or of the Revised Guide (19 December 2011, No. 584/2010), adopted by the Venice Commission, when they are interpreted in corroboration, articles  1 and 29 of the CRPD safeguard the right to active and passive vote of persons with mental disorders and of persons with psychosocial disorders. Until 2014, in the absence of an official interpretation of these norms by the UN Committee on the Rights of Persons with Disabilities, it was not possible to indicate with certainty the scope of the protection provided in article 29 of the CRPD. One may deduce that the deprivation of persons with disabilities of the right to political participation that was considered permitted before the entry into effect of the CRPD must be revised.

The international and European law on the rights of persons with intellectual and psychosocial disorders is focusing fast on full and equal participation. The international principles have had and will have impact at national level. Hence, the Moldovan Constitutional Court has shown a progressive approach that anticipates a repeated revision of the national legal framework in election matters related to persons with disabilities.

Thus, the Republic of Moldova secures an effective implementation of article 29 of the CRPD. The interference in the right to participation in the political and public life, provided by the challenged provision, is not proportional and represents a differentiated treatment, expressed through restrictions based on stereotypes and generalized hypotheses on a person’s capacity to exercise their right to elect. Such a restriction is contrary to the fundamental rights set out in arts. 29 and 12 of the CRPD, and hence contrary to art.4 para. (2) of the Moldovan Constitution.

Court judgement_Ro Hotărârea curții:

IDOM Takes Over Two Cases Where Relatives of Patients Hospitalized in Psychiatric Hospital Invoke Use of Torture and Ill Treatmen

INSTITUTUL PENTRU DREPTURILE OMULUI DIN MOLDOVA

MOLDOVAN INSTITUTE FOR HUMAN RIGHTS

      IDOM

          PRESS RELEASE

On 29 Sept 2018, the relatives of two patients hospitalized at the Orhei Psychiatry and TB Hospital posted their images in the social media, invoking they had been physically maltreated during their treatment there as they had found multiple marks of injuries on their bodies.

Presuming that the persons had been subjected/exposed to torture, inhuman and/or degrading treatment while kept in state custody, the IDOM lawyers contacted the relatives and took over the cases in view of providing legal assistance to the patients and clarifying the circumstances in which the bodily injuries had been caused to them during their treatment at the Orhei Psychiatry and TB Hospital.

On 1 Oct 2018, the IDOM lawyers Olesea Doronceanu, Alexandru Cebanaș and Andrei Lungu traveled to the Orhei Psychiatry and TB Hospital. In view of providing legal assistance, they met there with patients presumed to have been subject to ill treatment; spoke with their relatives, with other patients, with the medical staff and the hospital’s management; and requested and reviewed the entire medical documentation in their names.

Lawyers’ Findings and Actions Taken

The patients presumed to have been subject/exposed to torture and ill treatment are two old persons, a man and a woman, one of whom is still hospitalized in the Orhei Psychiatry and TB Hospital, while the other one had already been discharged at the relatives’ request.

  1. In the first case, patient B.A. was diagnosed with an incurable disease and hospitalized for treatment on 10 Sept 2018 based on Orhei psychiatrist’s referral. The patient was examined upon hospitalization and he did not have any visible injuries on his body.

On 27 Sept 2018, B.A.’s wife and daughter came to visit him and found multiple injuries on his body. The patient could not explain what had happened to him, as he does not talk and the disease with which he had been diagnosed does not allow him to realize the actual state of things. The medical staff explained to the relatives that the bodily injuries had been caused to the patient during the night of 26 Sept 2018 by another patient who was placed in the same ward with B.A.

The IDOM lawyers found that although six days had passed since the day of the incident, one could still see may marks of violence in the form of injuries on B.A.’s body: a bruised face, red and swollen eyes, many cuts, scratches and bruises in the areas of the head, front head, eyes, cheeks, and neck that were still bleeding. B.A. also had many injuries in the form of edemas and bruises on his chest and abdomen. Other injuries were found on his back, on both shoulders, in the kidney area, on his left arm and right leg.

Reviewing the medical papers and registers in B.A’s name, the lawyers found certain circumstances that did not match with the official position and the final explanation offered to the relatives by the hospital management.

The registers show that B.A. had been assaulted twice: the first time by a patient, on 24 Sept 2018, and the second time by the same patient, on 25 Sept 2018. The registers also show that the nurse on guard initially had explained that B.A. had fallen and hit himself against a heat radiator, and then he explained that on 25 Sept 2018, around 5 AM, he saw how B.A. was being hit with a spoon by another patient from the same ward.

The patients in the same ward with B.A. either could not explain what had happened due to the psychic diseases with which they had been diagnosed, or claimed they had not seen who physically maltreated B.A. because when they woke up, in the ward were just the nurse on guard, the patient claimed to be the aggressor, and B.A. who was lying on the floor and bleeding.

The patient claimed to have assaulted B.A. did not have any bodily injuries, nor could explain what had happened, due to his disease.

  1. The second case taken over involves the patient G.E. who was hospitalized at the Orhei Psychiatry and TB Hospital twice, between 8 July 2018 and 16 Aug 2018, and from 21 Aug 2018 to 19 Sept 2018.

G.E’s relatives (daughter) claim that she was a victim of torture and ill treatment during her hospitalization in the first time interval.

Having reviewed the medical papers and registers in G.E.’s name, the lawyers found that she had been hospitalized for the first time on 8 July 2018 and, according to the entries in the daily register of medical assistants, a plague and a bruise under her left eye were found during the examination. The presence of such injuries has been denied by her daughter and the driver of the taxi who had brought her to the hospital.

On the discharge day (16 Aug 2018), the daughter took her mother home and when bathing her in the evening she noticed multiple injuries on her body. She called the hospital right away and complained that her mother had been tortured during her treatment there but the institution did not react. On 21 Aug 2018, G.E. was repeatedly hospitalized at the Orhei Hospital and during the lawyers’ discussions with the medical staff, a nurse confirmed having seen injuries on G.E.’s body.

The lawyers also found that the conditions of placement of the patients were degrading: an unbearable smell in the sections, unaired wards; no paper in the toilets; no warm water in the boiler or personal hygiene items in the bathroom (soap, brushes, toothpaste, shampoo, towels etc.); the patients bathe only once a week.

Referring to the above-said circumstances, first we would like to stress that the persons placed in medical facilities are in the custody of state bodies and so the latter are obliged to protect their physical and psychological integrity and to secure the respect for their rights, including of not being subject to torture and ill treatment. The presence of multiple bodily injuries on patients while they are kept in state custody denotes that their security is not provided for and no measures are taken to investigate such cases or prevent others from happening in the future.

The circumstances found by the lawyers revealed that the hospital management, contrary to the law, does not take action to clarify the cases of bodily injuries being caused to the patients; no internal investigations are immediately started to find the acts and sanction the persons responsible for them (the cases became public and internal investigations were carried out after the patients’ relatives publicized them); no measures are taken to ensure the security of the patient, even if conflicts and violence with alleged aggressors had previously happened; the prosecution is not notified about the cases of violence found; the relatives are not announced about the incidents occurred.

The facts presented above lead to a reasonable doubt that the patients were exposed/subjected to torture and inhuman and degrading treatment (art. 1661 Criminal Code of Moldova) in the period of their treatment at the Orhei Psychiatry Hospital. IDOM lawyers believe that there are grounds to start criminal investigations under art.166/1 Torture, Inhuman or Degrading Treatment, Criminal Code of Moldova, for establishing with certainty the circumstances in which the bodily injuries were caused to the patients and to hold liable the persons responsible for the use of violence or failure to provide for their security.

IDOM lawyers have prepared and filed criminal complaints in the interests of both patients with the Prosecutor’s Office, invoking a reasonable doubt about the commission of the crime set out in art. 1661 Criminal Code of Moldova “Torture, Inhuman or Degrading Treatment.” The Orhei Prosecutor’s Office has started criminal investigations based on the lawyers’ complaints and is now prosecuting both cases.

For details related to the above cases, please contact us at: tel./fax: (+373 22) 244 911; 838 408; 838 409; e-mail: [email protected]; web: www.idom.md.

  

 

 

 

IDOM organized a three-day study visit to the Czech Republic for the staff of the Moldovan Ministry of Interior/GPI, General Prosecutor’s Office and representatives of the National Torture Prevention Mechanism

Starting with March 2018, the Moldovan Institute for Human Rights (IDOM) has been implementing the Project “Strengthening Institutional Capacities and Advocacy for the Respect of Rights of People in Police Custody” in cooperation with the Embassy of the Czech Republic to Chișinău.

One of the main project activities has been a three-day study visit to the Czech Republic for the staff of the Moldovan Ministry of Interior/GPI, General Prosecutor’s Office and representatives of the National Torture Prevention Mechanism.

IDOM organized the study visit in cooperation with the Czech Ministry of Interior between 10 and 14 September 2018. It included visiting police detention sites and meetings with the relevant key institutions of the Czech Republic, such as the Ministry of Interior, Foreign Policy Service Division, Ombudsman, Helsinki Committee, Amnesty International and other institutions that coordinate and supervise the pretrial detention and escorting of people in police custody. The study visit focused on identifying solutions to the gaps existing in Moldova in securing the respect for the rights of people in police custody as well as on the exchange of experience with the best practices in the area.

After the visit, IDOM aims to carry out lobby and advocacy activities, to organize round tables with the authorities and the relevant decision makers, to strengthen police capacities in the effective use of development and cooperation mechanisms at the national and international levels in the area of protection of the rights of people in police custody and enforcement of effective measures for the prevention of ill treatments, abuse and discrimination.

Photos from the study visit:

        

               

                               

        

       

       

        

       

      

FIFTY POLICE OFFICERS WORKING IN REMAND FACILITIES IN THE COUNTRY’S NORTH, CENTER AND SOUTH BENEFIT FROM TWO-DAY TRAINING IN HUMAN RIGHTS AND PREVENTION OF TORTURE AND ILL TREATMENT

The Moldovan Institute for Human Rights (IDOM) organized two trainings on 17 and 18 July and on 19 and 20 July inst., thanks to the financial support provided through the Swedish Agency for International Development Cooperation (Sida) and based on the partnership agreement signed with the General Police Inspectorate (GPI) in 2016. These events aimed at strengthening Police capacity to overcome the challenges that generate violations of the right not to be subject to torture and inhuman and degrading treatment in remand facilities.

Thus, 50 persons working in the remand facilities in the northern, central and southern regions of Moldova benefited from the trainings. Both events took place in the town of Vadul lui Vodă, at the touristic resort ODISEU.

     

Vanu Jereghi, IDOM Executive Director, came with an opening speech, followed by Vadim Ardeleanu, GPI Project Manager, who referred to the developments regarding the respect for the rights of people, held in police custody. He presented the objectives, mechanism of implementation, areas of intervention, recommendations as well as the threats in the process of implementation of the Strategy for Police Development during 2016-2020 and the Action Plan for reducing ill treatment, abuse and discrimination of persons held in police custody.

    

     

Dumitru Russu, Coordinator of the Monitoring and Reporting Program of IDOM encouraged the participants to hold an open dialogue when speaking about human rights and the concept of equality. Dumitru made reference to the provisions of the international and national legislation on discrimination; spoke about ECHR caselaw on Article 3 (the right not to be subject to torture, inhuman or degrading treatment) in cases of detention of persons with disabilities; about law no. 60 on the social inclusion of persons with disabilities, explaining in detail the concept of ‘reasonable accommodation’. One special section was dedicated to the Convention on the Rights of Persons with Disabilities.

     

Towards the first day of training, Svetlana Doltu, member of the Torture Prevention Council spoke about securing the right to health in remand facilities, especially referring to ECHR judgments on health that are also relevant for the Republic of Moldova; to the rights of apprehended/detained persons that CPT considers to have special importance; about the Nelson Mandela Rules, and the manner of securing medical activities in remand facilities.

    

    

On the following day, Ion Caracuian, Head of the Torture Combating Section of the General Prosecutor’s Office of Moldova, spoke about the safeguards for non-admission of ill treatment in remand facilities and presented the existing national and international normative acts. During this session, he explained the concepts of torture and inhuman and degrading treatment, making reference to the national and international legal frameworks as well as to the ECHR caselaw He also stressed the need to follow the regulation on the procedure for identifying, registering and reporting alleged cases of torture and inhuman and degrading treatment, approved by Order No. 77 of 31 Dec 2013[1]. The participants were also capacitated regarding the limits of use of physical force, special means and firearms as well as about the risks of not using them.

Arcadie Astrahan, Director of Botanica Community and Mental Health Center, specialist in human rights and health, spoke about the importance of observance of the rights of persons with mental disorders and injectable drug users, held in police custody.

      

At the end, IDOM representatives handed over participation certificates and thanked the GPI management for its input in the activities carried out so far.

    

800,000 LEI IN MORAL DAMAGES CAUSED TO YOUNG WOMAN THROUGH SURGERY ENDED WITH LOSS OF HER REPRODUCTIVE CAPACITY

The Moldovan Institute for Human Rights (IDOM) represented in court the interests of a young woman who had invoked that due to a surgery, her ovaries and fallopian tubes had been removed, which caused her a serious bodily injury and loss of reproduction capacity.

The surgery of laparotomy/bilateral oophorectomy, conducted in the absence of the patient’s informed consent, was proved by the judicial expertise reports to have been an incorrect and unreasoned decision, as the extirpation of ovaries and tubes could have been avoided. The surgical removal of the patient’s ovaries led to early menopause and sterility.

Circumstances of the case:

In February 2017, the IDOM lawyers took over a case at the request of a young woman and her mother who requested an intervention and legal assistance to prove an alleged case of medical malpractice and obtain through court financial and moral compensation for the damages caused through the illicit actions of the medical staff from a medical facility.

According to the young woman’s accounts, one winter morning in 2014 she was admitted to a medical facility, complaining about abdominal pains. At this medical facility, the patient was subjected to a number of medical investigations for making the diagnosis. She was transferred to the septic surgery section where she was examined by several surgeons who excluded any gynecological problems and made a preliminary diagnosis: surgical abdomen/intestinal occlusion. The doctors decided that the patient’s health condition required an urgent surgery. Although the ultrasonography examination results showed gynecological problems (bilateral cysts, endometrial matter on the right, a possible inflammatory process), the surgeons did not request a gynecologist’s advice or involvement in the surgery from the beginning.

The surgery, although urgent, started only late afternoon, at 15.30, through median laparotomy, and was conducted by three surgeons. During the surgery, the surgeons found that the source of infection was gynecological and invited a gynecologist to the surgery room. She decided on and conducted a bilateral oophorectomy (removal of ovaries and fallopian tubes). According to the statements later made by the surgeons, it was the gynecologist who had decided on the removal of the tubes and ovaries, while the surgeons (although they were not decision makers) supported her decision and considered it a right one. The gynecologist said she had not been involved in diagnosing the patient at the pre-surgery stage, the decision to remove her tubes and ovaries was made during the surgery and that it was a collective, not a personal, decision.

Before the surgery, none of the medical staff requested the patient’s consent to the surgery, although such a consent is mandatory, or explained her the surgery or the possible post-surgery consequences, although at that moment her condition was not extremely serious and she was rational and conscientious. Later, the young woman found out that the informed consent to the surgery had been requested and signed by her mother who had signed an agreement to the surgery but not to the removal of her daughter’s ovaries and tubes.

In March 2017, IDOM lodged a lawsuit in the interests of the young woman and her mother (indirect victim) and against the medical facility for the compensation of the moral and material damages caused.

In our legal action, we requested the court to find that the surgery of median laparotomy/bilateral oophorectomy (removal of ovaries and fallopian tubes) was unjustified, incorrect and unreasoned, and resulted in serious bodily injury to the patient; to find that the medical assistance provided to the patient was incomplete due to the doctors failing to make a correct diagnosis before the surgery; it was only partially correct; failing to notify the patient about the risks, need and consequences of the intervention; failing to request the patient’s consent to the surgery; underestimating the ultrasonography results and failing to involve a gynecologist at the pre-surgery stage; to collect MDL 2,000,000 (two million lei) for the benefit of the plaintiff in moral damages from the medical facility; to collect MDL 200,000 (two hundred thousand lei) for the benefit of the patient’s mother in moral damages from the medical facility; and to collect MDL 148,834.16  (one hundred forty eight thousand eight hundred thirty four lei and 16 bani) from the medical facility for the plaintiff in material damages.

During the court hearings, we proved the material and moral damages caused to the patient through the physical and psychological suffering she experienced then and had every day since. The woman was caused sufferings related to her incapacity of having a child because the unjustified removal of her reproductive organs caused the impossibility to conceive and give birth to a child in the future, to experience the emotions of pregnancy and motherhood, of breastfeeding, raising and taking care of a child. At the time of the surgery, the woman did not have children and the sterility caused her a huge psychological trauma, this pain being amplified by the awareness of the fact that this situation was irremediable. Her moral damages were also justified through the distress caused by the plaintiff’s incapacity of having a family, of being able to work or be financially self-sufficient (due to the depression that appeared because of the stress); sufferings caused by the reduction of her life quality (the menopause implies undergoing hormone substitution therapy for the rest of one’s life; in addition to the continuous use of hormonal medications, this also causes suffering, leads to a considerable weight gain, increases the risk of breast or cervical cancer, osteoporosis and urinary tract infections).

The guilt of the medical staff from the medical facility where the patient had been operated upon was also proved through two judicial expertise reports that found that: “The removal of both ovaries and fallopian tubes was an incorrect and unreasoned decision based both on the patient’s medical card data and the specialized literature; the extirpation of ovaries and tubes could have been avoided; the pre-surgery ultrasonography diagnosis (that suspected an ovarian endometriosis) was underestimated; the removal of the ovaries and tubes did not have vital signs and was selected as an incorrect method of surgical treatment; such a surgery can be conducted only in the presence of an informed, explicit and written consent.”

In July 2018, the first instance court ruled: “to admit partially the complaint for collecting moral and material damages; to collect MDL 800,000 (eight hundred thousand lei) in moral damages and 14,328.92 (fourteen thousand three hundred twenty eighty lei and ninety-two bani) in material damages from the X medical facility for the benefit of the plaintiff.”

We will appeal the first instance court judgment to the Court of Appeals, because even if the complaint had been partially admitted, the plaintiffs consider that the amounts of moral and material damages ruled by the court are too small.

The interests of the plaintiff and her mother were defended in court by the lawyer Olesea  Doronceanu from IDOM’s Litigation and Advocacy Program.

 Court judgment

Hotărâre judecătorească

600.000 LEI FOR INFECTING NEWBORN WITH HIV. THREE MEDICAL FACILITIES FOUND GUILTY AND REQUIRED TO PAY THIS AMOUNT AS COMPENSATON FOR MORAL DAMAGES CAUSED

The Moldovan Institute for Human Rights (IDOM) proved the guilt and liability of the medical staff of three public medical facilities whose actions and inactions caused damages to the life and health of a mother and her son by infecting the latter with HIV.

Circumstances of the case

The Litigation and Advocacy Program of IDOM took over this case in July 2017. The case had been brought forward by a mother who asked IDOM lawyers to get involved and provide qualified legal assistance in view of clearing up the circumstances of her son’s infection with HIV and the unjustified disclosure of her private health data, and of holding liable the persons responsible for infecting the child with HIV as well as those who had disclosed and permitted the disclosure of confidential information about her health condition.

The woman recounted that she gave birth to a boy in 2016. A few days after his birth she, for the first time, found out that she was bearer of HIV and then found out that her son had been infected as well, although she had been tested twice for HIV during her pregnancy and the first test result was negative.

In order to clarify the circumstances of the child’s infection, we filed a complaint with the Ministry of Health of Moldova against the actions of the medical staff of different levels and requested: “carrying out or ordering an epidemiological investigation to clear up the causes and circumstances of exposure to the risk of infection and of infecting the child with HIV; investigating how all the medical facilities involved in this case observed the provisions of the law and protocols  upon discovery, prevention and treatment in case of suspicions of infection or infection of the mother and child with HIV; finding the circumstances of disclosure of confidential information about the health condition of the mother by unauthorized medical staff, and sanctioning the persons responsible for the act of disclosure.”

The Ministry of Health carried out a fair and impartial investigation. After the assessment visit, it prepared an Informative Note fairly and fully clarifying the causes and circumstances of exposure to the risk of infection and of infecting the child with HIV.

The Commission found a range of violations and concluded that all those irregularities led to the fact that the pregnant woman had not been diagnosed with HIV in time, the ARV treatment had not been started before and during the pregnancy, and the newborn was breastfed and an ARV prevention treatment for him was not started during his first 72 hours of life. The failure to carry out these prevention measures increased the risk of infection from 2% to 40-45%.

In September 2017, IDOM, when representing the interests of the mother and the child, filed court suits against three medical facilities and requested the court to find violation of the right to health, physical and psychical integrity and life (art.2 ECHR) of the plaintiff’s son by having him infected with HIV due to the errors and negligence committed by the medical staff; to find a violation of the plaintiff’s right to health and physical integrity by failing to diagnose the presence of HIV in her body in due time during her pregnancy, and non-observance of confidentiality; to find a disclosure of confidential information about the plaintiff’s heath condition by unauthorized medical staff; to collect MDL 1,000,000 (one million lei) from the defendants in a solidary manner in favor of the plaintiff and her son as compensation for the moral damages caused by the defendants’ illicit actions.

During the court hearings we proved that the transmission of HIV from the mother to the fetus takes place through the placenta (15%), during the labor and delivery (15%), and during breastfeeding (15%), so the risk of transmission of HIV from an infected mother to the fetus is of 13% to 50%, 30-45% on the average, in the absence of an ARV prevention treatment. An ARV treatment provided to the mother during pregnancy and delivery, lack of breastfeeding and an ARV prevention treatment provided to the child right after birth may reduce the risk of transmission of HIV to the child to 2%.

It results from the statements made by the plaintiff and the circumstances found by the commission set up by the Ministry of Health that medical staff of various levels from various medical facilities failed to show the necessary diligence, due to negligence and lack of professionalism, and did not take all diagnosis and prevention measures set out by the law and the national clinical protocol “HIV Infection in Adults and Teenagers,” and, as a result, a newborn was exposed to the risk of infection and was infected with HIV. The plaintiff was not diagnosed in time with HIV, although she was tested twice for HIV during her pregnancy. Hence, she did not receive the necessary treatment during her pregnancy and so, her child was infected with HIV during pregnancy, delivery or breastfeeding. The child’s infection could have been avoided if all medical workers had conscientiously and responsibly performed their work duties.

Although the plaintiff had followed all medical directions and had been tested twice for HIV, her blood samples were kept in improper conditions and sent late to the laboratory, the test results were not notified in time and the treatment was omitted. At the same time, although during delivery the maternity staff knew that the results of the second HIV test were missing, they did not provide a prevention treatment either to the mother or to the child and did not ask her to suspend breastfeeding, hence the newborn was exposed to the risk of infection from the negligence of the medical staff.

In June 2018, the district court ruled to accept partially the complaint and found violation of plaintiff’s son’s health, physical and psychic integrity, and life by having him infected with HIV as a result of the errors and negligence committed by the medical staff; and a violation of the plaintiff’s right to health and physical integrity by failing to diagnose the presence of HIV in her body in due time during her pregnancy. The court then ordered collection of MDL 600,000 (six hundred lei) in a solidary manner from three medical facilities in favor of the plaintiff as moral damages.

We will appeal the district court’s judgment at the Court of Appeals because, although the district court found and accepted that most serious violations had been committed, it did not order collection of the entire amount of moral damages requested and did not find that a disclosure of plaintiff’s confidential health information had taken place.

During the eight years during which IDOM has provided legal assistance to people living with HIV, this is the first case taken over and litigated in which we invoked and proved that medical facilities were responsible for failing to diagnose a woman with HIV and for infecting a child with HIV.

The plaintiff and her son were represented extrajudicially and in court by the attorney Olesea Doronceanu from IDOM’s Litigation and Advocacy Program.

Hotărâre judecătorească

QUALIFIER ‘HANDICAPPED’ EXCLUDED FROM MOLDOVAN CONSTITUTION

(picture: voceabasarabiei.md)

The qualifier ‘handicapped’ will be replaced with ‘with disabilities’ in the text of the supreme law. In this sense, the Executive approved the opinion for amending arts. 50 and 51 of the Moldovan Constitution in its today’s meeting.

With these amendments, constitutional provisions will be aligned to the international and national legislation, already aligned, which is a commitment made through the ratification of the UN Convention on the Rights of Persons with Disabilities, which sets up a new disability paradigm, marking the passing from the medical model to the social one, based on inclusion.

The state has previously approved amendments and completions to many legal acts in this area, removing the discriminatory terms to comply with the international regulations that secure the protection of and full and equal exercise of human rights and fundamental freedoms by all persons with disabilities, and promote the respect for their dignity.

Source:   Unimedia.info

IDOM ORGANIZES JOINT TRAINING WORKSHOP FOR THE POLICE, PROSECUTORS AND STAFF OF COCIERI SOCIAL HOUSE

The Moldovan Institute for Human Rights (IDOM), thanks to the support provided by the Swedish Agency for International Development Cooperation (Sida), carries out a monitoring of the respect for the rights of people with mental and intellectual health in psychiatric facilities, training and strategic litigation.

The UN Committee against Torture recommended to the Republic of Moldova to train the police, prosecutors, judges and all the staff involved in providing health services in the methods of interaction with people with mental/psychosocial disabilities and efficient investigation and documentation of torture and of inhuman and degrading treatment.

During the monitoring of psychiatric/psycho-neurological facilities, IDOM flagged the gaps in the management of cases involving people with mental/intellectual disabilities in Cocieri psycho-neurological boarding (social) house. In view of capacitating the law enforcement, on 25 May 2018, IDOM organized a joint workshop for the police, prosecutors and staff of Cocieri Social House. The event took place at the Mayor’s Office of the village of Ustia, district of Dubăsari.

The head of the Torture Combating Section of the General Prosecutor’s Office Ion Caracuian, the Executive Director of IDOM Vanu Jereghi, and the Coordinator of the Monitoring and Reporting Program of IDOM Dumitru Russu were trainers in the above-mentioned training.

   

   

   

   

DUMITRU RUSSU, IDOM REPRESENTATIVE, ELECTED MEMBER OF THE TORTURE PREVENTION COUNCIL

In a press release issued today, the Ombudsman announces the appointment of Dumitru Russu, IDOM representative, as member of the Torture Prevention Committee under the Ombudsman.

On 21 May 2018, the Committee for the Selection of members of the Torture Prevention Council issued a decision on the selection of the new member for a five-year mandate, under arts.30 and 31 of the Law 52/2014 on the Ombudsman and pts.2 and 18 of the Regulation on the Organization and Operation of the Torture Prevention Council.

The Torture Prevention Council is set up in accordance with the Law 52/2014 on the Ombudsman to protect people against torture and other cruel, inhuman or degrading punishments or treatments, as a national torture prevention mechanism, in accordance with the Optional Protocol to the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment.

ENSURING RESPECT FOR HUMAN RIGHTS IN POLICING

On 16 May 2018, the Moldovan Institute for Human Rights (IDOM) organized a round table with the generics “Ensuring Respect for Human Rights in Policing.” This event was possible thanks to the financial support provided through the Swedish International Development Cooperation Agency (Sida) and to the support provided by the American people.

The event aimed to identify the means for removing the gaps identified in ensuring the rights of people held in police custody. In this connection, IDOM presented the findings and recommendations deriving from the report on ‘monitoring remand facilities’ in view of preventing ill-treatments.

We were honored by the presence of the distinguished Ambassador of Sweden to Moldova Ms. Signe Burgstaller who said a few greeting words at the beginning of the event, and of the Senior Counselor of the Criminal Justice Section of the US Embassy to Moldova – Mr. Edward Cronin, together with Mr. Petru Țurcan – Head of the International Cooperation Department in the Moldovan Ministry of Interior, and Mr. Joshua Visi – Senior Police Officer in Austin Police Department who presented the American good practices in policing. Ms. Barbara Fischlowitz-Leong – Expert in the Rights of Disabled Persons, M.Ed., Executive Director / CEO of Assistive Technology Resource Center spoke about securing the rights of people with disabilities in police custody, bringing clear examples and recommendations in this sense.

We would like to thank all the participants who accepted the invitation and attended our event: the General Police Inspectorate; Ministry of Interior; Ministry of Health, Labor and Social Protection; Keystone Moldova; National Institute of Justice; the Ombudsman; Institute for Penal Reforms and the Council for the Prevention and Elimination of Discrimination and Assurance of Equality in Moldova; Soros Foundation Moldova; Civic Association “Home and Health”; EU Delegation; Alliance of Organizations of People with Disabilities of Moldova; and BAA Public Attorneys.

Photo from the event:

   

   

   

   

   

   

   

   

   

   

        

     

 

MINISTRY OF HEALTH, LABOUR AND SOCIAL PROTECTION GIVES ASSURANCES THAT RIGUROUS SURVEILLANCE SECTIONS IN PSYCHO-NEUROLOGICAL BOARDING HOUSES WILL BE CLOSED

While the Moldovan Institute for Human Rights (IDOM) conducted a monitoring of psychiatric and psycho-neurological institutions regarding the observance of the rights of persons with psychosocial and intellectual impairments as well as during its litigations, it found that psycho-neurological institutions included a significant number of residents whose freedom was limited inside ‘closed-type’ sections (rigorous surveillance sections).

The UN Committee Against Torture (CAT), in its third periodic report, recommended to the Republic of Moldova in pt. 32 letter c) “to make sure that nobody is placed involuntarily in such institution for non-medical reasons, including by securing that patients are entitled to be heard personally by the judge who orders their admission, that the judge asks the opinion of a psychiatrist, and that such decisions may be challenged.” The UN mechanism allows involuntary placement only with the observance of the safeguards mentioned supra. In the national context, it refers to the admissibility of limitation of individual freedom in psychiatric hospitals, not in psycho-neurological boarding houses.

At the same time, according to article 14 para.1 of the Convention on the Rights of Persons with Disabilities (liberty and security of person) “1. States Parties shall ensure that persons with disabilities, on an equal basis with others: (a) Enjoy the right to liberty and security of person; b) Are not deprived of their liberty unlawfully or arbitrarily, and that any deprivation of liberty is in conformity with the law, and that the existence of a disability shall in no case justify a deprivation of liberty.”

In this connection, restricting the freedom of these persons by isolating them in ‘closed-type’ sections may fall under the jurisdiction of article 166 of the Criminal Code “Illegal Deprivation of Freedom of a Person”, or if one pursues punishing a person in the sense of CAT[1], this may entail their liability in the sense of article 1661 of the Criminal Code “Torture, Inhuman or Degrading Treatment.” Hence, IDOM finds it empirical to eliminate the practices of placing the persons kept in psycho-neurological boarding houses in ‘closed-type’ sections and, as a result, to secure the respect for their freedom.

Bearing in mind the above, IDOM sent a letter to the Ministry of Health, Labor and Social Protection (MHLSP) in April inst. and requested to be informed about the terms and actions to be taken to secure the observance of the norms set forth and for observing the provisions of articles 3 (the right to not be subject to ill-treatments) and 5 (the right to freedom and safety) of the ECHR.

MHLSP has recently examined IDOM’s approach and informed us that it would take measures to close the rigorous surveillance sections in neurological boarding houses. At the same time, the Ministry informed us that it had requested the management of psycho-neurological boarding houses to take measures in view of remedying the situation and close down rigorous surveillance sections, including to re-assess the beneficiaries placed in such sections.


[1] Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment

Demers IDOM catre MSMPS

Raspunsul MSMPS

 

IDOM Lawyers Participate as Trainers in “Safeguards against Abuses of Persons with Disabilities” Training

On 3 May 2018, the IDOM Lawyers Alexandru Cebanaș, Dumitru Russu and Olesea Doronceanu, together with Maria Ghervas, Judge at the Supreme Court of Justice, and Ion Caracuian, Head of the Torture Combating Section of the General Prosecutor’s Office of Moldova, trained in the training “Safeguards against Abuses of Persons with Disabilities,” organized by the resource Group for Human Rights, with the support of ABA ROLI

The participants were capacitated in the following areas:

  • Legal capacities as a safeguard against abuses of and discrimination against persons with disabilities;
  • Particularities of the evolution of the judicial practice on the recovery of legal capacity by persons declared incapacitated;
  • Measures of contractual and judicial protection of persons with disabilities;
  • Standards of efficient investigation of cases of inhuman treatment involving persons with mental health issues;
  • Particularities of securing and safeguarding the right to defense of persons with mental disabilities.

Pictures from the event:

 

 

VANU JEREGHI, IDOM: WE LIKE TESTING THE SYSTEM AND WE DO IT ALL THE TIME

The Moldovan Institute for Human Rights (IDOM) is renowned for its pro bono services in serious cases. People there, a group of enthusiastic lawyers, each time test if the system changes some of its vicious practices. The IDOM Director Vanu Jereghi says that pro bono services are not popular in Moldova due to people’s mindset. You can find out more from this interview about IDOM’s experience in this regard and about what they have managed to change along the years.

Bizlaw: Why do you provide pro bono services and, generally, what is the designation of your institute?

Vanu Jereghi: The institute was set up in 2007 by a group of human rights defenders. We were five people, with work experience of ten years in civil society at that time. Why? Everything done in the civil society, or the vast majority of activities offered by the civil society, are free of charge. We are a watchdog organization, those who fight against the state.

We are a strategic litigation organization. This means we take over several cases from the crowd, where there is a vicious practice for the people. We cannot represent everyone, so we choose the most representative cases and we go to court with them, to test and destroy the vicious practices. If there is a wall that impedes us and must be demolished, we do not break it up by taking away bricks from the top, one by one, but rather find the main pillars and destroy them. In new litigation cases, we change the practice, the law and state practices. And we have many examples in this area. For example, when we were founded as IDOM, we had experience in the nongovernmental sector and, at that time, we decided we should take those areas that were not covered by our other colleagues. We focused on such areas as HIV/AIDS because no one had worked in that area and during the years we had worked in other organizations we had not seen any complaints filed by people with HIV.

There are two reasons when no complaints are filed: either there are no problems, or there is fear to file them. In our case, it was the latter.

At present, we do not face any legislative barriers. Absolutely the entire legislation on HIV has changed in seven to eight years. And if there are any human rights violation practices they are individual and insignificant for the entire society or the HIV/AIDS area. The victim may consider it a very serious case but if speaking for the country or the system as a whole, they are insignificant cases.

We have a strategic plan. This means a document about what we will be doing in the next 3-4-5 years, where we will intervene, in which areas, using which methods, and what the outcomes will be. For example, this year we were supposed to have more strategic litigation cases for people with HIV. We have already changed the draft document because we do not have such cases. Not the figures count to us but rather having the problem solved.

BizLaw: What exactly motivated you to get involved in the provision of pro bono services, because free services are still treated with reluctance in Moldova?

Vanu Jereghi: Or there is something behind the scenes… for sure, there is something. And yet, we can speak about two big pro bono directions. All our beneficiaries think that we work pro bono, which is not always true. Most of my colleagues are attorneys who work full time for IDOM. They have fixed salaries and many cases as freelancers where they choose their own cases. My colleagues know that they will have an X amount of money each month, they are dedicated to the victims, do not look for clients who wear suits but may go to a psycho-neurological boarding school and speak with a person with disabilities who has lived their entire life there, or may sit at the same table with people having HIV. My colleagues are a team built during ten years and they enjoy what they do. They may sit in the office until the morning, which is something normal for them. We have not always had funds. We have four strategic areas: HIV/AIDS, which has been mentioned, then mental health – psychiatry, malpractice and detention sites. We work with one of the most vulnerable groups. Psychiatry in general…

I always say that if democracy has opened doors in prisons or in the police, the situation has remained the same in psychiatry. Things, of course change, but they move more slowly. Not as we would like them to, but they are changing for the better.

We have not always had money to cover all the areas. For instance, we worked from grants and from projects in the previous years. A donor, when announcing a grant, says they are interested in HIV/AIDS or psychiatry. When we take money for one area, this means that the other three areas remain uncovered, and my colleagues, receiving a salary from that project, offer their free time to the other three areas. They understood that those areas were important for the organization and for the society and they said if we had abandoned those areas, they would have died, and we would have died as an organization, too. In the past two years, we have had grants from the Swedish Government, institutional grants. They gave us money and said that it was for the implementation of our strategic plan. In such way, I can pay my colleagues proportionally. Of course, this is not 100%, they receive about 80%, and they work pro bono for the rest of 20%. For instance, we have a contract but I, as an NGO director, cannot foresee absolutely everything what an attorney should do because outside going to court we also do monitoring or write reports, different issues arise, or we are involved in various national or international fora. We constantly receive invitations to meetings or to submit reports. We do this pro bono. 

For the beneficiary, this is pro bono but I can speak about 100% pro bono cases. Such cases do exist in our practice as well as in that of our attorney colleagues. For example, we were very much involved after the events of 7 April 2009, we worked with the victims. IDOM was the one to collect all the information and write reports.

Out of 108 complaints, we represented 38 victims. Back then, it was a request from the society for someone to intervene and we saw many good, young attorneys, who lacked experience but who wanted to change something.

They came to the meetings and said they did not have money but wanted to help the victims. A group of 20-30 attorneys got together and discussed which strategy to take and more experienced attorneys said we should go one way or another. It was an attorneys club where everyone was meeting everyone else, forgetting about money but wanting to do something. The pro bono work exists when the society expects something and people mobilize themselves to do it. Of course, for only 30 attorneys to come out of 2,000 was little, and yet, it was an indicator.

BizLaw: Regarding malpractice cases, how do they go in this area? There is no malpractice law in place and doctors usually get off with light sanctions. Have you had severe cases? How did it happen? Did the victim come to you or were you the ones to choose the case?

Vanu Jereghi: We have a few case selection methods. First, we go to the regions, to residential institutions, where we monitor them and take cases over from there. People have their freedom restricted. We receive phone calls, the door is open and people come here all the time. We have partner organizations that refer clients to us. It is not obligatory to have a malpractice law. We were the only ones to make a report on what was happening in the country because ten years ago we called this area “Patient’s Rights”, which is something much broader. In time, we have narrowed down within this segment in order to have better results. We have had very interesting cases, e.g. women convicted for late abortions. Convicted for murder and sentenced to 20 years of imprisonment. They were released in the end, but some had spent up to six years in detention. We take the cases from the media, each day you see what has happened, people complain on the doctors but then you do not see any continuity. The bomb exploded and that is it. I was always wondering and discussing with my press colleagues about who should follow it further.

I think we have now ten malpractice cases pending. They are the most complicated cases, and first of all for us, those who are lawyers. When such a situation occurs, you must read a lot of medical information. There is need for an expert examination and one must answer some questions. The prosecutor or investigator has no idea what questions to ask of a medical expert. There is no other profession more united than the medical one in this country. Maybe judges, too, but this is coming to an end. Doctors are the most united ones. And the problem that arises here is, whom do we approach to help us?

We have had cases when we had to translate case files. We initially decoded it, 70 pages, which lasted two months. We hired a resident doctor who decoded it between his classes. Then we had it translated to English, after which it was sent to a British expert. He reviewed the case and told us what was not correct in it and sent it back to us, we translated it to Romanian and took the document to court. The judge, however, said that the British expert, no matter how good, was not an expert in our country because he was not registered in our country. As in the Boboc case. We brought the expert who did the disinterment, he did not take any money, had come pro bono, having been invited by a civil society organization and not by a state institution. He worked for four days, gave his report to the authorities, with conclusions different from what our experts had written in the Boboc case. The death certificate written by our experts still says that he had died due to some unknown gas. The judge and the prosecutor said that the expert could not participate. The expert was an UN expert and participated in Yugoslavia had presented information at the Hague Tribunal, while here they claimed he was not registered. It was the only case when disinterment was done here with the participation of one of the best experts at global level. In our country, he was asked to show his diplomas. A pro bono case for our society. The person worked pro bono, and I think we will not get away without having to pay 20 or 30 thousand euros for his services.

BizLaw: Can Moldova now boast with a well-defined and well-established pro bono culture?

Vanu Jereghi: No. I always say that the initial upbringing is important and that school should teach us do things without waiting for remuneration. I am always surprised when people say they have received 200 hours of community service. I watched a news item yesterday about a Chinese billionaire who had been collecting the garbage on his street for 20 years because he wants it to be clean. While we expect those from the kolkhoz or from the party to give us things and do things for us. I have not seen anything happen pro bono in this country. And in the case of those 30 attorneys, I did not think they would come to work either.

BizLaw: Should such services be regulated in the law on the legal profession? Should there be some provisions in place, since many attorneys complain that tax authorities come to check on them?

Vanu Jereghi: In our case, it is easier because my attorneys sign a contract with the organization and issue mandates to their clients based on such contracts, without having to attach the legal agreement. But we have another problem – the Swedish Government tells us straight: “you are very vulnerable here, in Moldova, as an organization, and you must start making money.” We live from grants. We had periods with ten grants running in parallel, and we had periods with just one grant. This of course was at the beginning. Now we have grown up. But when you have only one grant, when it ends, it takes up to four or five months to find other money, and I cannot keep my colleagues here. They have families, a private life, must pay their bills and buy food. And until the next grant comes, in the period between them, I either lose my colleagues or do not have money to pay our rent and bills.

This organization started out on a pro bono basis, we were five people who got together and said, “let us make an organization.” They said, “Vanu, you will be the direct,” and then they were gone. In the following nine months, I rented an office, on a pro bono basis, and spent my personal money. We had just the name and we were left like that, with a bylaws and the name. The first grant that came and enabled us to develop was for nine months. I could not afford working from home for nine months because it only seems to you that you are working when you are home. When the first grant came, I already afforded hiring someone to help me.

BizLaw: What has been the most complicated case you have managed?

Vanu Jereghi: We like testing the system and we do it all the time. We have had a few examples. I tried earlier to talk about that girl who was convicted. Some American women came to us and said they had talked with many Moldovan lawyers but they did not want to take up that case. They reasoned that it was impossible to do it in the Moldovan realities or that they had other prejudices regarding abortions. They had met with super famous attorneys and offered money to them but they did not want to accept. Some did accept but did not do a good job. This was the Reproductive Rights Center from the USA. They said there was a case and they had found out about it from the media, about a girl who had been convicted for abortion. We worked on that case for about four years. The US people worked on it, two persons from Romania worked on it, and so did we. We went to the president. The person was sentenced to imprisonment in Rusca Prison. She was a person without any sexual or even general education. Her entire family were drinking and were working in the field by the day. The landowner for which the entire family worked raped her in the field. She found out she was pregnant in the fourth or fifth month. She had no idea she was pregnant and physiologically she was a bit different from the vast majority. She made an abortion, and I always wondered what would have happened if a woman who lived in Chișinău had made a late abortion. 

In this girl’s case, who was from the countryside, she was in the garden killing the weeds when she had an abortion and two babies were born. Our experts called them babies while the experts did not call them babies. We review how our state assessed whether they had been alive or not. Our state takes their lungs out and puts them on water. If they sit on the water it means they had breathed and this is enough. But international practice says differently i.e. one must first see if they were viable.

We brought Andreea Marin from Romania, those were huge investments; UN Moldova got involved. People from the Ministry of Foreign Affairs said they had never received so many petitions on such cases. Our ambassadors to the UN and to the Council of Europe said they knew the case better than any Moldovan prosecutor did because representatives of other countries were approaching them on that case. Our authorities said no. The General Prosecutor’s Office saw there were super many pressures put on them, we brought the UN recommendation saying that the girl had to be released, we came with the recommendation to the political leaders and they said the situation was as it was. I went to the Prosecutor’s Office, they said, go to the Ministry of Justice, I went to the Minister of Justice and he said, go to the Prosecutor’s Office.

BizLaw: To how many years had she initially been convicted?

Vanu Jereghi: To 20 years. She meanwhile said she wanted to study English and the UN staff helped her learn English right in the prison. She was then pardoned and released; we finally convinced the president to pardon her. That was the only solution in her case, to be pardoned.

The abortion happened when she was killing the weeds in her garden and she saw that they (the babies) were not breathing and buried them in the garden. She was bleeding and went to the hospital and the first thing the doctor wrote in her record was that a late abortion had taken place. There is another little interesting thing here: our doctors are required to announce the law enforcement about anything. And they announced them about a girl having come with late abortion. The police from Glodeni came and asked her, “Where is your child?” She said, “Buried in the garden.’”

BizLaw: So she was honest with them?

Vanu Jereghi: Yes, she was honest and the prosecutors said, sign here if you want to go home. She signed the paper without reading it. But for a prosecutor from the remote region of Glodeni is a super thing to have a murder case discovered, so she was convicted. She did not even have a lawyer. She was bleeding and they arrested her in that condition. There is nothing more severe than infanticide or murdering orphan children for women’s prisons. Therefore, she was persecuted by those she was sharing the cell with. She finally was released and is ok. She has even learned a profession. The head of the prison tells me, “I would like all my female convicts to be like her.” She is super decent.

BizLaw: Nonetheless, she did serve a few years, didn’t she?

Vanu Jereghi: About six years, as long as we worked on her case. But there was no other solution. This is one case.

The second case comes from the times when our state was constantly claiming that all those kept in psychiatry were insane, absolutely all of them. This is how our society treats it. If I have been once to the psychiatrist, then I have something permanently, which is not true. We started visiting psycho-neurological boarding houses or psychiatric hospitals. We first entered such institutions in 2000. None of the human rights defenders had visited such institutions before then. I got scared of the things I saw there. When opening people’s files, I, as a lawyer realized very well that one may not have their rights limited if one has not been deprived by legal capacity by the court. Even if the approaches have completely changed, but this is something else. And I asked them, how do you qualify these people as insane if they have not been tried by a court? Who qualified them as such? The doctors told me that judges understood nothing. I looked at it in legal terms and, de jure, they are like you and me.

“Let us monitor the elections in these institutions,” to which many told me we were more insane than they were. How could one monitor the elections in psychiatry? We were the first ones in the region to say, “let us see how they are voting.” The then minister of health, from the communist government of that time, called all the institutions and asked, “How could your crazy people vote?” We had meetings with them before the elections and told them about the voting procedure and what the doctors were supposed to do. In fact, it is the same procedure as in the emergency hospital. The doctors told me that they would not provide for the voting procedure because they had received phone calls/letters from the minister telling them those people were not voting. We then opened the Criminal Code and said that if they opposed, they would be held liable. And the people voted. About 260 people voted in the first year. Even the media covered the fact that the crazy people voted, that the crazy people supported the communists. This did not matter to us. What mattered to us was to secure their rights. About 60% of all the institutionalized persons votes in the past elections.

We are now having cases in court. The Non-Discrimination Council has already issued decisions and the cases are now in court. If a person is in psychiatry, the Central Election Commission does not enter them in the database. When they go to vote and show their ID, a red sign comes up indicating the person is not entitled to vote. We are having such cases in court right now. So now, we do not have any problems with the psychiatry, none whatsoever. They vote there now as they do it in the Emergency Hospital or in “Sfânta Treime” one.

And the third case is also a very interesting one among those we have had. We are all patients when we take a sick leave and are absent from work. What do we do in such case? We bring a medical certificate to back to work, so that our manager and the accountant know how to calculate those days. It is a sheet of paper saying for how many days I am incapable to work. In the past, the medical certificate issued always mentioned the person’s illness. So, if I brought such a certificate to work, the accountant or anyone else could see what I had been ill with. Why would this be needed? It is a secret.

Certificates now do not mention the illness anymore. We went to court with the Ministry of Health for three years and have changed the system. This work was done on a pro bono basis; we did not have any projects. It was our initiative and we said, let’s change it. We have a colleague who is attorney and was absent from the court hearing, and then reasoned her absence by a medical certificate. The judge attached it to the file. And the certificate said that the person had had an abortion. Why is this necessary? I, as a manager of an organization, need to know that my employee was unable to work for five days, for instance. That is all, nothing else is needed. But in big institutions, try and bring a certificate to a factory or to the trade unions, and every one finds out. It is an even more serious situation for people with HIV, their certificates used to say the same. We went to court, took with us a person who had been recently ill, and claimed that eight legal acts were being breached, including the Moldovan Constitution. This is confidential information, between me and my doctor, and that is it. No one else should know.

The Ministry, the one that makes policies in this area, was saying that we could not do something like that. Then they said that they had printed one million sick leave certificates and we said, ok, then simply change the internal order so that doctors do not write anything in that section. They did not want to do it. Meanwhile, they found a way out and said, let us take the standards of the World Health Organization. Let the illness’ code be indicated instead of its name. So that it is clear for everyone. If I go to a different country, using the same certificate, doctors should understand. We said it was not enough. They came to court and said they had changed it and that they now indicated codes rather that the diagnosis. We said, “honorable court, please open your computer and search for the WHO codes and you will immediately find the person’s illness, why do this at all then?” We won in the end and no such information is indicated now any longer.

BizLaw: And the last question, which are the organization’s plans for the future? Will you choose other areas? What other problematic areas exist in Moldova?

Vanu Jereghi:  We are right now working on our strategic plan, because the current one is expiring soon. Our donors asked us to tell them what we are planning to do in the next three years, from 2019 to 2022. I think we will keep our current areas, and we may even narrow them down. It is impossible to cover all the areas. An organization may surely exist in each area, one that either defends only people with HIV, or only people with mental health issues. While we are the ones who change the major things. We will only change our activities and will focus more on changing policies and not just on individual cases. However, it remains to be decided with our colleagues together.

BizLaw: Thank you!

This interview was produced under the project “Strengthening Paralegals Network,” implemented by the Associate Lawyers Office “Efrim, Roșca and Associates” and cofounded by the Justice and Human Rights Department of the Soros Foundation Moldova. This item does not necessarily reflect the views of the Foundation.

Author: Dumitrița Ciuvaga. The item was taken over in full from www.bizlaw.md

 

 

 

CONVICTED TO FREEDOM IN MALPRACTICE CASE LITIGATED BY IDOM OR HOW THE LAW ON AMNESTY ‘WORKS’

Criminal conviction for medical malpractice. IDOM lawyers succeed in proving a medical malpractice incident within a criminal case.

In March 2018, the Supreme Court of Justice issued a final judgment in a medical malpractice case. Although a doctor was criminally convicted for a medical error that led to a patient’s death, the amnesty act applied by the highest court removed the consequences of the conviction. The amnesty served as a wall for the formal recognition of the guilt and was exclusively used to avoid the consequences of the conviction. This conclusion was later reconfirmed when the doctor denied her guilt in a civil case for the repair of damages for her criminal act.

Details of the case

In June 2013, a young patient died in a medical facility of Chișinău in just a few hours after being admitted. She was 24, had recently married and had been delivered of a baby girl two weeks before that.

The lawyers of IDOM’s Litigation and Advocacy Program took over the case and filed a criminal complaint in the interests of the husband of the deceased patient in July 2013. In our complaint, we requested a criminal case to be started on grounds of commission of the crimes set out in art.162 para.2) letter b) of the Criminal Case “Withholding Help from a Sick Person” and art.213 p.b) of the Criminal Code “Violation by Negligence of Medical Assistance Rules and Methods” by the medical staff of four medical facilities, who had provided assistance to the deceased patient at different stages.

The Râșcani District Prosecutor’s Office started a criminal case and pressed charges against an intensive care doctor from a Chișinău medical facility. The doctor was blamed that while she was acting as an intensive care doctor she ignored the rules and methods for providing medical assistance and while she was performing a surgery, viz. catheterizing patient’s central subclavian vein, on the left side by negligence injured the subclavian vein and the apex of the left lung, which caused severe bleeding in the pleural cavity and total collapsing of the left lung (the rib cage contained 3 litres of haemorrhagic liquid and 1.0 kg of coagulated blood mix), which caused the patient’s death.

The forensic report, in addition to the direct cause of the death, also found that the patient had received full, adequate, but late treatment at all stages of her hospitalization and so, the serious general condition of the patient was one of the contraindications for transferring her to another medical facility.

The commission set up by the Ministry of Health at the request of IDOM’s lawyer for examining the quality and quantity of the medical assistance provided to the patient, although flagging numerous gaps in the medical assistance provided to the patient, yet concluded that the medical assistance was suboptimal and that another tactics would have not changed the result and that the case had to considered unavoidable at the hospital level.

The conclusion was based on the fact that the patient was correctly diagnosed with a malign tumour only post mortem. Hence, while alive, although permanently in the sight of medical facilities, she had not been correctly diagnosed or received specific treatment for the disease she was suffering from.

The criminal investigation and trial of the case lasted for three years, during which the accused doctor never admitted her guilt in committing the crime, never atoned, and always pleaded innocent.

In 2016, the Rîșcani District Court of Chișinău ruled to find X guilty of committing the crime provided in art.213 letter b) Criminal Code and sentenced her to 1 year of imprisonment. According to art.90 of the Criminal Code, the enforcement of the punishment was conditionally suspended for a probation period of 2 years. Based on art.78 para.2) of the Criminal Code, the complementary punishment of deprivation of the right to hold certain positions or to carry out certain activities was removed.

The conviction sentence was appealed by the prosecutor and the successor of the injured party via the IDOM lawyer, on grounds of the mild punishment imposed. During the examination of the criminal case and in his verbal statements, the husband of the deceased patient never pleaded for a conviction with a real execution of the punishment by the doctor and let it to the court to establish the punishment. The only successor’s request was to deprive the doctor of the right to perform her doctor’s profession for three years and to reserve his right to file later a civil action for the recovery of his moral damages.

The defendant X also challenged the sentence of the Rîșcani District Court and in her appeal requested to be acquitted.

In February 2017, on the day set for the examination of the appeals, at the beginning of the meeting, the defendant filed a request for terminating the criminal case under the Law on Amnesty no.210 of 29 July 2016, invoking that she pleaded guilty and was feeling sorry. The defendant’s request to have the Law on Amnesty applied contravened her requests from her appeal in which she had not pleaded guilty and requested to be acquitted.

The Criminal Chamber of the Chişinău Court of Appeal decided to reject the appeals filed by the prosecutor of Rîșcani District Prosecutor’s Office, the successor of the injured party and the lawyer  Olesea Doronceanu against the sentence issued by the Rîșcani District Court as being groundless; to accept the appeal filed by the defendant X; to dismiss the sentence of the Rîșcani District Court; to terminate the criminal case against X and to have her release from criminal liability based on the amnesty act.

IDOM lawyers think that the Chișinău Court of Appeal in its judgment committed a serious violation of the rights of the successor of the injured party, and especially of the right to an efficient second appeal (failed to examine his appeal); his right to a fair and controversial proceeding; interpreted the law in an abusive, illegal and extinctive manner; violated the procedural norms for examining the appeal; and indicated findings that were not true and that had not taken place.

Thus, a legal proceeding that required over three years to prove a case of medical malpractice ended in several minutes in a Court of Appeals hearing by exempting the defendant from criminal liability. The doctor pleaded guilty, and not because she admitted she had erred, but rather in order to avoid criminal liability.

The IDOM lawyer filed a second appeal with the Supreme Court of Justice and requested that the judgment of the Chișinău Court of Appeal be quashed. In March 2018, the Supreme Court of Justice ruled to reject the second appeal. Although the court rejected the second appeal, one of the judges of the examining panel issued a split opinion thus pleading for a another solution than the one adopted by majority of votes.

In reasoning his separate opinion, the judge expressed most of the arguments of the defence on which the second appeal was based: i.e. in trying the appeal, the court completely vitiated the trial; it violated a number of procedural norms that generated a violation of the victims right to a fair trial and to an effective recourse (art,6,13 ECHR); the reasoning of the solution contravened the dispositional part of the judgement; the fact that the participants de facto had not attended the examination of the appeals; they did not express their opinions on the appeal etc.

In the opinion of IDOM’s lawyers, the amnesty act could not remove a criminal conviction but could serve as a reason for removing the consequences of the conviction i.e. it removes the criminal liability.

Although requesting the application of the amnesty act and its application is a defendant’s right, this right may not affect the rights of the victim who, in this case, was denied the right to a fair trial by a miming of the trial of the appeal and application of amnesty based on the defendant’s pleading guilty in a formal and insincere manner that was imposed by the circumstances.

Based on this case, we will file a complaint with the European Court of Human Rights invoking violations of the articles 2, 6, and 13 of the ECHR.

Continuity of the case at the national level

In 2017, the IDOM lawyer filed a complaint in the interests of the husband of the deceased patient against the medical facility in which the doctor was working for the compensation of the moral damages caused through the medical malpractice. In our civil action, we requested the court to find a violation of Arts.2 and 8 of the ECHR and collection of an X amount from the defendant for the plaintiff as compensation for the moral damages caused by the defendant’s illicit actions.

The representatives of the medical facility in which the medical malpractice took place do not acknowledge the action or the responsibility of the medical facility for their staff’s acts. The doctor who was convicted and then was pardoned in the criminal case attended all the court hearings and again pleaded innocent, although she had pleaded guilty during the criminal proceedings in order to avoid the consequences of her conviction.

The civil action is pending before the district court.

You may access the sentence and judgement of the Court of Appeal, the decision of the Supreme Court of Justice, and the split opinion of the Supreme Court of Justice here:

SENTINTA

Curtea Suprema de Justitie_DECIZIE

Curtea Suprema de Justitie_Opinie separata

DECIZIE_Colegiul Penal al Curtii de Apel Chisinau

 

DESIGNATE 2% OF YOUR PAID INCOME FOR THE PROTECTION OF VULNERABLE PERSONS’ RIGHTS

Dear friends,

Established on 27 June 2007, the Moldovan Institute for Human Rights (IDOM) is a non-profit institution, made up of professionals who promote and defend human rights through monitoring and reporting, awareness-raising, strategic litigation and promotion of human right standards in policies and legislation.

IDOM is the only non-governmental organization that monitors the observance of the rights of persons kept in remand facilities, in psychiatric hospitals and in psycho-neurological boarding houses. Hence, it protects victims of torture, inhuman and degrading treatment, and secures respect for and harnessing of human dignity.

For ten years, IDOM lawyers have helped many persons with psycho-social disabilities to recover their legal capacity, giving them the opportunity to live a fulfilled and independent life, in conditions of dignity and equality for everyone. In addition, we have started many legal actions for the recovery of assets of persons with intellectual/psychosocial disabilities who had been deprived of them upon their institutionalization and deprived of their legal capacity.

Over 2,000 persons living with HIV have received legal consultation or have been represented by IDOM lawyers before the authorities and courts of law to ensure the protection of their rights and freedoms. Thanks to IDOM, pregnant women living with HIV are entitled to give birth in any maternity hospital in the country, enjoying respect for the principle of equality and without being discriminated against.

Our beneficiaries are vulnerable persons, for instance, persons living with HIV, persons with intellectual/psychosocial impairments, victims of torture or of inhuman treatment, held in police custody, as well as the victims of medical malpractice. It depends on our help whether such persons are able to enjoy a sufficient level of protection.

If you want to bring your input into IDOM’s work, when you file your income declaration (CET15) with your territorial tax office, indicate IDOM’s fiscal code – 1016620000929. This will secure that the state designates 2% of the income tax paid by you for the protection of the rights of persons listed above.

Thank you for contributing to defending human dignity in our society!

Respectfully yours, Vanu Jereghi, Executive Director

 

THE RIGHT TO VOTE OF PERSONS WITH DISABILITIES DECLARED INCAPACITATED ACKNOWLEDGED BY COUNCIL FOR THE PREVENTION AND ELIMINATION OF DISCRIMINATION AND ASSURANCE OF EQUALITY

The Council for the Prevention and Elimination of Discrimination and Assurance of Equality (CPEDAE) has ruled in a case started by the Moldovan Institute for Human Rights (IDOM) to find Article 13 para.(1) letter (b) of the Election Code: ”The persons incapacitated by a final court judgment […] are not entitled to elect,” as representing direct discrimination against the right to vote of persons declared incapable on grounds of disability.

On 28 Nov 2017, IDOM considered that a differentiated treatment had been applied to the petitioners on a disability criterion, although art.29 of the UN Convention on the Rights of Persons with Disabilities clearly establishes that persons with disabilities have the right to vote equally to everyone. At the same time, another group of persons with psychosocial impairments was treated in a discriminatory manner by association with persons declared incapacitated.

To recall that IDOM monitored the exercise of the right to vote by persons with mental disabilities during the 2016 presidential elections. Hence, IDOM found that the voting process unfolded with irregularities, since during the elections, the barriers faced by the persons with disabilities of the six residential institutions and three hospitals had not been removed.

In the two cases litigated by IDOM, CPEDAE found that the acts represented direct discrimination against the voting rights of persons declared incapacitated on a disability criterion as well as discrimination against the persons with psychosocial disabilities by association with persons declared incapacitated. At the same time, CPEDAE recommends amending Article 13 of the Election Code to secure the access of persons with mental and intellectual disabilities to the voting process, as its current version provides for a discriminatory treatment, which is in contradiction to the international provisions in human rights matters.

Please find attached the CPEDAE decision (in Romanian).

DECIZIE CONSILIU DEPERSONALIZATA

 

AMERICAN ORGANIZATION “DISABILITY RIGHTS INTERNATIONAL” AND MOLDOVAN INSTITUTE FOR HUMAN RIGHTS VISIT TOGETHER MOLDOVAN RESIDENTIAL AND MEDICAL INSTITUTIONS

On 30 and 31 January inst., IDOM together with an international team of experts led by the director of the US-based organization Disability Rights International (DRI) Eric Rosenthal conducted a few monitoring visits to the institutions subordinated to the Ministry of Health and Ministry of Social Protection, as follows:

  • Codru Clinical Psychiatric Hospital;
  • Center for Placement and Rehabilitation of Young Children;
  • Boarding House for Children with Mental Disabilities (boys) of Orhei;
  • Social House of Bădiceni, district of Soroca;
  • Children’s Temporary Placement and Rehabilitation Center of Bălţi.

After the monitoring visits, the US experts will prepare a country report to show the (non)-effectiveness of the system for the social protection of persons with mental disabilities, especially of children placed in socio-medical institutions. The conclusions and recommendations formulated by the experts will help identify practical solutions in order to strengthen the national system for the social protection of persons with disabilities held in residential and medical institutions.

DRI is a nongovernmental organization, set up in 1993, having its premises in Washington DC that aims to prevent discrimination and abuse faced by the persons with mental disabilities, providing support to governments with developing policy papers in the respective areas.

 

IDOM STARTS CASES TO REACQUIRE PROPERTY OF PERSONS WITH MENTAL DISABILITIES, DEFRAUDED AFTER INSTITUTIONALIZATION AND DEPRIVATON OF LEGAL CAPACITY

Last year, the Moldovan Institute for Human Rights (IDOM), through the attorneys of its Litigation and Advocacy Program, in partnership with Keystone Moldova, started a number of cases on the re-obtaining of property of persons with mental disabilities who had been defrauded during institutionalization and deprivation of their legal capacity.

According to the IDOM lawyer Valerian Mămăligă: “Until recently, a person with mental disabilities could be declared incapacitated under a court judgment and deprived of legal capacity. And so, the person would be deprived of their fundamental rights while their decisions would be made by their guardian. The persons under guardianship would often be placed in residential institutions while the guardian remained in charge of their property, including of its alienation. At present, with the amending of the Civil Code and of the Civil Procedure Code, more and more persons who had been declared incapacitated are now being reinstated in their rights by having their legal capacity acknowledged. Theoretically, they could return to the community but most of them do not have a place to live because other people live now in their houses, or they had been sold.”

One of such cases is the one of Ion (name is changed – author’s note) who lived with his family until he was 14, with his two sisters. After his parents died, he was placed in the Orhei Boarding House for Children with Mental Disabilities. Unfortunately, of the property he was supposed to inherit, there is only the land plot there now on which the family’s house was once located, while the other land plots had been fraudulently sold.

Keystone specialists intervened in this case and requested the assistance of an IDOM’s lawyer to obtain Ion’s inheritance share. Since the beneficiary had not accepted his succession in due term because the authorities of the Children’s Boarding House had not undertaken the necessary actions of information about the deadline for accepting the succession after mother’s death, the property right was assigned to his sister.

In order to redeem Ion’s inheritance rights, IDOM lawyer filed a complaint in court in Ion’s interests and requested prolongation of the term for accepting the succession after mother’s death, and namely one half of the testamentary property.

In another case, Sergiu (real name was changed – author’s note) was born with a congenital infection and is mentally retarded. He lived with his mother until he was 39 and then was placed in the Cocieri Boarding House. He has been there for 19 years. Five years ago, his mother sold the apartment, being unaware that her son had a share in it. The lawyers found that Sergiu’s mother in fact wanted to sell her apartment in exchange for life provision but she had been deceived by the buyer and in fact signed a sale and purchase contract. Sergiu had also lost his share in his Chișinău apartment because he had been misled and forced to sign a power of attorney with the notary by which he had granted his mother the right to dispose of his assets.

Later, when Sergiu’s mother understood that she had been deceived, together with her son filed a complaint in court for recognizing the nullity of the sale and purchase contract. The court ruled to reject their complaint as groundless, and thus they lost ownership of the only house they had.

IDOM lawyers intervened to provide legal assistance to Sergiu at the phase when the court judgement under which Sergiu and his mother had lost their ownership of their only house was appealed with Chișinău Court of Appeal. The latter ruled to accept the appeal, dismiss the first instance court judgement and recognize as void the apartment sale and purchase contract.

The dispute is now pending before the Supreme Court of Justice.

Regaining of one’s property right was also the goal in the case of Andrei (name is changed – author’s note) who has also been deprived of his legal capacity. His close relatives had refused to take care of him and so, the guardianship on him and his brother was assigned to a non-related person who at that time was holding the position of chief of the Department for the Protection of Child Rights. The guardian did not live together with his dependents, having placed him in the Boarding House of Bălți. After Andrei’s brother died, the guardian sold his brother’s share in the apartment to a relative without Andrei’s knowledge.

Keystone Moldova requested IDOM lawyers to provide legal assistance to Andrei, especially with verifying the legality of the guardian’s administration of his and his brother’s property and of the sale of one share of the joint property held by the latter.

According to IDOM lawyer Olesea Doronceanu – “Having reviewed the beneficiaries’ files, we found that their placement in a boarding house raised very many questions, while the administration of their property, and especially the sale of one share of their joint property is not clear and apparently abusive and contrary to the law.

We filed a criminal complaint in the beneficiary’s interests with the National Anticorruption Center (NAC) and requested it to start an investigation in order to establish the correctness, proportionality and legality of the guardian’s and guardianship body’s duties in regard to their dependents.

At IDOM’s request, NAC started a criminal case under art.328 of the Moldovan Criminal Code “Exceeding one’s power or exceeding one’s work duties”. The beneficiary was then found injured party and heard in the case.

The case is pending.