The case was taken over by IDOM lawyers in 2013 and the actions of health service providers were examined in national courts in terms of criminal and of civil law.

In terms of criminal law, the doctor responsible for the medical malpractice was sentenced by the first instance court under Art.213 of the Criminal Code. Later on, the Court of Appeals ruled to dismiss the case and the doctor was released under the amnesty act. The Supreme Court of Justice upheld the position of the Court of Appeals.

In terms of civil law, the first instance court ruled to acknowledge the violation of the patient’s right to life through medical malpractice and established moral damages in the amount of 75,000 Lei.

The Court of Appeal and the Supreme Court of Justice upheld the judgment of the first instance court.

The lawyer Olesea Doronceanu of IDOM’s Litigation and Advocacy Program represented the interests of the successor of the injured party (patient) in the courts.

For more details, see the story below:

http://sanatateinfo.md/News/Item/8393?fbclid=IwAR1NVzYIMeaiTqO9slhuiFs-H9WJiJQSg9DLw1cIDaUeICqUZ_TXGAnQVts 

Thanks to the financial support provided by Sweden in accordance with the Cooperation Agreement with the General Police Inspectorate (GPI), the Moldovan Institute for Human Rights (IDOM) carries out monitoring of detention conditions of persons held in police custody, trainings, strategic litigation, and monitoring of psycho-neurological boarding houses and of psychiatric hospitals regarding the respect for rights of persons with disabilities.

In this sense, on 3 and 4 April 2019, IDOM organized a training in Edineț that aimed at strengthening police capacities of overcoming the deficiencies that generate infringements of the right not to be subject to torture and inhuman and degrading treatment in remand facilities. Twenty members of staff of PI of various districts benefited from the trainings.

Ion Sîrbu – Head of Detention and Escort Section of the Judicial Police Service of GPI, opened the event by speaking about the developments regarding the respect for the rights of persons held in police custody.

Svetlana Doltu, Member of the Torture Prevention Council, spoke about securing the right to health in the PI, especially referring to the ECHR Judgments on Health, relevant to the Republic of Moldova; the rights of apprehended/detained persons, which are considered of special importance by the CPT; the Nelson Mandela Rules; and about the manner of securing PI medical activities.

Arcadie Astrahan, Director of Mental Health Community Center, Botanica district, expert in mental health, spoke on the second day about the importance of the respect for the rights of people with mental impairments and of injectable drug users held in police custody.

Dumitru Russu – Coordinator of the Monitoring and Reporting Program of IDOM, presented the Equity Concept, referring to the international and national legislation on discrimination; he spoke about ECHR caselaw on Article 3 (right to not 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 term of “reasonable accommodation.” A separate chapter was dedicated to the Convention on the Rights of Persons with Disabilities.”

The Moldovan Institute for Human Rights (IDOM) in collaboration with the Ministry of Justice of the Republic of Moldova organized the round table on “Strengthening the national mechanism to combat hate crimes”. The event took place, in the premises of the conference room of the Ministry of Justice, on 14^th of March 2019.

On 18 December 2017, the Republic of Moldova was condemned by the UN Committee on the Elimination of Racial Discrimination (CERD) for the failure of the State to effectively investigate hate crimes based on race and the lack of effective remedy before the national courts. In the Committee’s observations of 12 May 2017 regarding the Report of the Republic of Moldova on the Implementation of the International Convention on the Elimination of All Forms of Racial Discrimination, it was recommended that the State party should continue to conduct training programs for law enforcement officers, police officers, judges, lawyers and State officials including specialized trainings on the prevention of racial discrimination and the rights enshrined in the Convention.

The event consisted the totalization of the implemented project “Strengthening the Police Capacity to Combat Hate Crimes”, within the framework of which IDOM offered support in realization of the UN Committee’s recommendations.

The round table was organized with the participation of international partners, such as Konrad-Adenauer-Stiftung (KAS), Embassy of Sweden, Council of Europe and the OSCE Mission to Moldova aimed at consolidating the results achieved through presenting the conclusions and recommendations, as well as holding discussions with all relevant actors with a view on generating changes in the existing situation and in the whole system.

In view of strengthening the capacities of election observers to monitor the parliamentary elections and the republican consultative referendum on 24 February 2019, the Moldovan Institute for Human Rights held a training course on 9 February 2019, which was attended by over 30 observers accredited by the Central Election Commission. The event took at the Republican Youth and Children Center Artico in Chișinău.

IDOM’s Executive Director Vanu Jereghi opened the event and made a presentation of the organization and the training activities. He was followed by Gheorghe Bosîi, elections expert from the Center for the Rights of Persons with Disabilities (CDPD), who spoke about the election processes and how to ensure them for the persons with disabilities. Ion Cibotărică, expert in the rights of persons with disabilities, CDPD, presented the UN Convention on the Rights of Persons with Disabilities and spoke about the exercise of the right to vote and physical accessibility to voting sections. At the end, Dumitru Russu, Coordinator of Monitoring and Reporting Program of IDOM, mentioned the practical aspects of the monitoring of parliamentary elections in Psychiatric Hospitals and Placement Centers for Persons with Disabilities.

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This event is conducted within the project “Contributing to promoting inclusive political participation during 2019 Parliamentary elections in Moldova aimed at fostering respect for electoral rights of the persons with mental disabilities placed in psychiatric and psycho-neurological institutions”, implemented by the Moldovan Institute for Human Rights (IDOM) The project is supported by the East Europe Foundation within the project “Civil society advocacy for inclusive and fair elections in Moldova, compliant with EU and OSCE/ODIHR recommendations and human rights commitments”, funded by the European Union and co-funded by Sweden.

Thanks to the financial support provided by the Embassy of Finland to Bucharest under the project “Promoting Effective Application of Human Rights to Persons with Mental Disabilities for Protecting Their Rights,” and thanks to the support of Sweden via the core support program, on 15-16 February 2019, the Moldovan Human Rights Institute (IDOM) held a training course for journalists and other media representatives in areas related to freedom of expression, hate speech, ECHR caselaw, good practices in using non-discriminatory language for preventing the use of stereotypes and prejudices in writing and reporting on subjects related to the rights of persons living with HIV/AIDS, persons with mental disabilities, and other socially vulnerable groups, exposed to discrimination in the society.

The event took place at the touristic complex Odiseu in the town of Vadul lui Vodă.

Trainers in the event were Vanu Jereghi, Executive Director of IDOM; Doina Ioana Străisteanu, Lawyer and Expert in Human Rights; Nadine Gogu, Executive Director of the Independent Journalism Center; and Dumitru Russu, Coordinator of IDOM’s Monitoring and Reporting Program.

On this way, we would like to thank Kerttu Auvinen, the representative of the Embassy of Finland to Bucharest, for honoring us with her presence on the first training day.

 

The Moldovan Institute for Human Rights (IDOM), thanks to the financial support provided by Sweden, monitors and evaluates the observance of rights of persons held in state custody as well as of those held in pre-trial detention facilities, psychiatric hospitals, and Temporary Placement Centres for Persons with Disabilities;^[1] holds trainings and conducts advocacy and strategic litigation, etc.

The United Nations Committee Against Torture and the United Nations Committee on the Rights of Persons with Disabilities, in its 2017 evaluations, stressed the recommendation to the Republic of Moldova to train the police staff, prosecutors, judges, and all staff involved in providing healthcare services in methods of interaction with persons with mental/psychosocial  disabilities and to investigate and document efficiently the cases of torture and inhuman or degrading treatment.^[1] According to the conclusive observations of the United Nations Committee, on 6 December 2018, the state had to communicate the actions planned to implement the recommendations.

In view of strengthening the capacities of the authorities to prevent torture and reduce ill treatments and discrimination, between 18-20 December, IDOM organized a training course entitled: “Strengthening Capacities of NSAA Staff^[2] and Managers of Temporary Placement Centres for Persons with Disabilities To Prevent Torture and Reduce Ill Treatment, Abuse and Discrimination.”

In this connection, several NSAA staff members, the directors and managing staff of the Temporary Placement Centres for Persons with Disabilities (village of Cocieri, Orhei, town of Hîncești, village of Bădiceni, Bălți and village of Brânzeni) as well as several staff members of the Police Division for the Protection of Rights of Persons with Disabilities attended the event that was held at the touristic resort Odiseu in the town of Vadul lui Vodă.

The following were trainers in the training:

Vanu Jereghi – Executive Director, IDOM;

Dumitru Russu – Coordinator, Monitoring and Reporting Program, IDOM;

Nelea Panfil – Project Coordinator, Keystone Moldova;

Svetlana Doltu – Health Expert, Member of the Torture Prevention Council;

Ion Caracuian – Head of the Torture Combating Section, General Prosecutor’s Office of Moldova;

Olesea Doronceanu – Lawyer, Litigation and Advocacy Program, IDOM;

Arcadie Astrahan – Program Director, Community Mental Health Centre, Botanica, Mental Health Expert.

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[1] Based on the Government Decision no.454 of 16 May 2018 on Reorganizing the National Social Assistance Agency, the psycho-neurological boarding houses were renamed Temporary Placement Centres for Persons with Disabilities (adults / children)

[2] The National Social Assistance Agency is an administrative authority under the Ministry of Health, Labour and Social Protection, which manages the activities of the Temporary Centres for Persons with Disabilities (adults and children); GD No.454 of 16 May 2018 on Reorganizing the National Social Assistance Agency and GD No.1263 of 18 Nov 2016 on Approving the Regulation on the Organization and Functioning of the National Social Assistance Agency, its structure and staff limit.

Thanks to the financial support provided by Sweden and according to the Cooperation Agreement with the General Police Inspectorate (GPI), the Moldovan Institute for Human Rights (IDOM) carries out monitoring of detention conditions for the people held in police custody, trainings, strategic litigation, and monitoring of psycho-neurological boarding houses and psychiatric hospitals regarding the respect for the rights of people with disabilities.

In this sense, IDOM organized a training between on 29-30 November 2018, which was held at the touristic complex Odiseu in Vadul lui Voda. The training aimed at strengthening police capacities for overcoming the deficiencies causing violation of the right not to be subject to torture and inhuman and degrading treatment in remand facilities. Twenty-five people working in police inspectorates in various regions of the country attended the training.

Ion Caracuian, head of the Torture Combatting section of the General Prosecutor’s Office of Moldova, spoke about the safeguards for non-admission of ill-treatments in remand facilities, and presented the national and international normative acts in this sense.

During the session, the trainers explained the terms of torture and ill and degrading treatment by referring to the national and international frameworks as well as to the ECHR caselaw. They stressed the need to follow the regulation on the procedure for identifying, recording and reporting alleged cases of torture and inhuman and degrading treatment, approved by Order No.77 of 31 Dec 2013. The participants were also capacitated about the limits for using physical force, the special means and firearms, as well as about the risks of not using them.

Towards the first day of training, Natalia Toporeț, forensic expert in cases of torture, spoke about the medical aspects of torture and how to use the methodology for medical examination and documentation of such cases.

On the second day, Arcadie Astrahan, director of the Mental Health Community Center, Botanica, spoke about the importance of respecting the rights of people with mental disorders and injectable drug users held in police custody.

Dumitru Russu, coordinator of Monitoring and Reporting Program of IDOM, presented the concept of equality, referring to the provisions of international and national legislation on discrimination. He also spoke about the ECHR caselaw on Article 3 (right not to be subject to torture or ill or degrading treatment) in cases of detention of people with disabilities and about Law no. 60 on the Social Inclusion of People with Disabilities, explaining in detail the term of ‘reasonable accommodation’. A special chapter was dedicated to the Convention on the Rights of People with Disabilities.

 

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

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.

    

    

    

     

     

     

     

    

    

    

     

     

   

   

    

     

     

     

   

     

    

    

    

     

     

     

     

    

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:

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.

2. 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: info@idom.md; web: www.idom.md.

  

 

 

 

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:

        

               

                               

        

       

       

        

       

      

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.

    

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

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

(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

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.

   

   

   

   

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.

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:

   

   

   

   

   

   

   

   

   

   

        

     

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.

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

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