IONIȚĂ-CIUREZ v. ROMANIA

 
 
FOURTH SECTION
DECISION
Application no. 42594/14
Sînziana IONIȚĂ-CIUREZ
against Romania
 
The European Court of Human Rights (Fourth Section), sitting on 4 June 2019 as a Committee composed of:
Faris Vehabović, President,
Iulia Antoanella Motoc,
Péter Paczolay, judges,
and Andrea Tamietti, Deputy Section Registrar,
Having regard to the above application lodged on 29 May 2014,
Having regard to the observations submitted by the respondent Government and the observations in reply submitted by the applicant,
Having deliberated, decides as follows:
THE FACTS
1.  The applicant, Ms Sînziana Ioniță-Ciurez, is a Romanian national who was born in 1982 and lives in Bucharest. She was represented before the Court by Ms R.I. Ionescu, a lawyer practising in Bucharest.
2.  The Romanian Government (“the Government”) were represented by their Agent, most recently Mr V. Mocanu, of the Ministry of Foreign Affairs.
A.  The circumstances of the case
3.  The facts of the case, as submitted by the parties, may be summarised as follows.
4.  At the time the application was lodged with the Court (May 2014), the applicant was pregnant with her second child. She had a low-risk pregnancy with no complications and was being monitored by a certified midwife and an obstetrician.
5.  The applicant wished to give birth to the child in a different setting than the hospital, and preferably at her home, with support from her husband and a medical professional, either a certified midwife or an obstetrician.
6.  The applicant explained that, as she had become aware that no medical professional would be available to assist her, she eventually gave birth in a public hospital. She claimed that, upon admittance to the hospital, she had been subjected to a series of medical procedures in preparation for delivery.
7.  The applicant did not complain to any authority as she considered that there was no effective domestic remedy at her disposal.
B.  Relevant domestic law
8.  The Medical Assistants and Midwives Act (Law no. 307/2004) allowed midwives to assist with home births (Article 6(g)). That Act was replaced by Government Emergency Ordinance no. 144/2008, which no longer mentioned assistance with home births among the attributes of midwives (Article 7). Article 7(e) of that Ordinance states generally that midwives can assist a mother during labour and monitor the state of the foetus via appropriate clinical and technical means.
9.  Article 48 of the Code of Ethics and Deontology of Medical Assistants and Midwives of 9 July 2009 (published in the Official Gazette, no. 560 of 12 August 2009), which is not legally binding, states that midwives can provide medical assistance at home. There is no express mention of assisting with home births.
10.  The Ministry of Health adopted the Regulations concerning the private practice of medical assistants and midwives (Order no. 1454/2014). That instrument allowed midwives to monitor pregnancies and provide health services related to birth and postpartum care autonomously (Article 4.1 (h) of Appendix no. 1). For births, they had to be accompanied by a medical doctor (Article 4.4(e) of Appendix no. 1).
C.  Opinion of professional bodies
11.  The Government requested the opinion of several domestic agencies with attributions in the field of baby delivery.
12.  The Alessandrescu-Rusescu National Institute for the Health of Mother and Child, which was under the aegis of the Ministry of Health, explained that although the law did not prohibit it, home birth was not encouraged, because of the risks involved. They referred to the risk of medical complications, the poor road infrastructure and logistics to deal with emergencies, and the lack of sufficient resources to cover medical care at birth both in hospitals and at home. Medical personnel had a duty to inform pregnant women of those risks. In their view, assistance with home births could be provided by the private sector.
13.  The Order of Medical Assistants and Midwives considered that the law did not allow the midwives to assist with home births. In their view, giving birth should only take place in hospital in order to avoid any risk. Medical personnel could not take the risk involved in assisting with home birth.
14.  The College of Doctors considered that there was no legal basis for allowing medical assistance with home births. They explained that medical assistance could be given at home only upon a doctor’s recommendation; it could not be left to the patient’s discretion.
COMPLAINTS
15.  The applicant complained that the State had breached its positive obligations under Article 8 of the Convention in so far as it had failed to provide clear regulations concerning home births. She alleged that the medical professionals had refused to provide her with medical assistance to give birth at home or in any setting other than a hospital. In her view, this situation had affected her capacity to choose the circumstances of becoming a parent and had exposed her to the risk of giving birth without professional help.
16.  Relying on Article 1 of Protocol No. 12 to the Convention and Article 14 in conjunction with Article 8 of the Convention, the applicant complained that the lack of regulations in the field of home birth had amounted to discrimination against her on the grounds of sex and pregnancy, in so far as she had been deprived of the possibility to freely and responsibly exercise her right to choose the setting in which to become parent.
THE LAW
17.  Relying on the provisions of Articles 8 and 14 of the Convention and Article 1 of Protocol No. 12 to the Convention, the applicant complained about not being able to give birth at home with the assistance of a medical professional.
18.  The provisions invoked by the applicant read as follows:
Article 8 of the Convention
“1.  Everyone has the right to respect for his private and family life, his home and his correspondence.
2.  There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others.”
Article 14 of the Convention
“The enjoyment of the rights and freedoms set forth in [the] Convention shall be secured without discrimination on any ground such as sex, race, colour, language, religion, political or other opinion, national or social origin, association with a national minority, property, birth or other status.”
Article 1 of Protocol No. 12 to the Convention
“1.  The enjoyment of any right set forth by law shall be secured without discrimination on any ground such as sex, race, colour, language, religion, political or other opinion, national or social origin, association with a national minority, property, birth or other status.
2.  No one shall be discriminated against by any public authority on any ground such as those mentioned in paragraph 1.”
A.  The parties’ submissions
1.  The Government
19.  The Government considered that the applicant had failed to exhaust the domestic remedies. In particular, there was nothing in the file indicating that she had contacted any medical professional with a request to assist her in giving birth and had been refused. Moreover, she had not lodged any action, be it with the courts, with the College of Doctors, with the College of Nurses and Midwives or with the National Council against Discrimination, to complain of an alleged refusal by the medical professionals to assist her with home birth. Therefore, the Government concluded, the applicant had had no intention to bring her claim before the domestic authorities.
20.  In the Government’s view, the applicant should have lodged an action based on the Civil Code in order to compel the medical professionals to assist her. They argued that lodging an action with the judicial or administrative bodies could have helped clarify the alleged legislative uncertainty in the matter.
21.  Lastly, the Government argued that the applicant had failed to support her allegations of having been treated less favourably because of her choice of home birth.
2.  The applicant
22.  The applicant argued that she did not have an effective remedy at her disposal to bring her complaints before the domestic authorities. Firstly, she noted that the Government had not pointed to any examples of relevant domestic case-law. Moreover, even if one of the actions indicated by the Government could have been successfully used, it could not have been examined in the short timeframe of about two months between the moment when she had found out that the pregnancy had evolved without complications and the actual birth.
23.  The applicant further pointed out that the professional bodies consulted by the Government had a divergent understanding of the legal framework regulating safe out-of-hospital birth (see paragraphs 11 to 14 above). She also reiterated that, unlike the situation in the case of Dubská and Krejzová v. the Czech Republic ([GC], nos. 28859/11 and 28473/12, 15 November 2016), where the prohibition on assisting with home births had been clearly stipulated in law, Romanian law lacked clarity. This uncertainly allowed for grey areas where home births were not expressly prohibited but no clear rules were provided either concerning, for instance, the quality of the medical assistance at home, or the protocol for rapid access to a hospital in the event of complications. This uncertainty rendered home birth unsafe for the women who chose to do it.
B.  The Court’s assessment
24.  The Court notes at the outset that the Government raised several objections of inadmissibility. It will first examine whether the applicant has exhausted the domestic remedies.
1.  General principles
25.  The Court reiterates that the rule of exhaustion of domestic remedies referred to in Article 35 of the Convention obliges those seeking to bring their case against the State before the Court to use first the remedies provided by the national legal system, thus dispensing the States from answering before an international body for their acts before they have had an opportunity to put matters right through their own legal systems (see Gherghina v. Romania (dec.) [GC], no. 42219/07, § 84, 9 July 2015, and Vučković and Others v. Serbia (preliminary objection) [GC], nos. 17153/11 and 29 others, § 70, 25 March 2014). In order to comply with this rule, normal recourse should be had by an applicant to remedies which are available and sufficient to afford redress in respect of the breaches alleged (see Gherghina, decision cited above, § 85). The existence of mere doubts as to the prospects of success of a particular remedy which is not obviously futile is not a valid reason for failing to pursue it (see, among many other authorities, Vučković and Others, § 74, and Gherghina, § 86, both cited above).
2.  Application of these principles to the present case
26.  The Court notes that the applicant claimed that medical personnel had refused to assist her with giving birth at home (see paragraph 15 above). However, the Court finds nothing in the file that would support these allegations. In particular, it notes that when describing her situation, the applicant made no reference to any specific refusal of a medical professional to assist her. Such a refusal cannot be inferred from the mere fact that she allegedly heard that the medical professionals would not assist her (see paragraph 6 above). Moreover, the Court notes that the applicant herself admitted that she had not contacted any domestic authority with her grievance (see paragraph 7 above).
27.  The Court observes that the applicant considered the domestic law to be unclear on the matter of medical assistance at home birth (see paragraphs 15 and 23 above). The professional bodies consulted by the Government also gave conflicting answers on this point (see paragraphs 11 to 14 above).
28.  In this context, the Court considers that by failing to lodge any sort of complaint with the national authorities, the applicant made it impossible for the latter to test and/or interpret the impugned laws and regulations (see, mutatis mutandis, Costiniu v. Romania (dec.), no. 22016/10, § 29, 19 February 2013)
29.  The Court has accepted in the past that the absence of a well‑established body of domestic case-law predating the application with the Court can be explained by the fact that the remedy referred to by the Government – which was not a new or special remedy – had rarely been used (see Gherghina, decision cited above, § 100). In the present case the Government relied on the provisions of the Civil Code (see paragraph 20 above) which represented the general law for seeking injunctions, thus being neither new nor specially designed to deal with the situation of home medical assistance. Moreover, the Court notes that the issue raised by the applicant is relatively recent as the domestic law had been changed only in 2008 (see paragraph 8 above), thus six years before the application was lodged.
30.  The Court reiterates that in a legal system in which fundamental rights are protected by the Constitution and the law, it is incumbent on the aggrieved individual to test the extent of that protection and allow the domestic courts to apply those rights and, where appropriate, develop them in exercising their power of interpretation (see Gherghina, decision cited above, § 101). In the present case, if the applicant had any doubts about the possibility of obtaining a court order against medical personnel, it was for her to dispel those doubts by applying to the domestic courts. Moreover, the Court reiterates that domestic law also includes provisions of a procedural nature empowering a court to order interim measures in urgent proceedings, with a view to preserving a right that is liable to be impaired or preventing imminent and irreparable damage. On the basis of these provisions, any interested party may make an application for interim measures to the court with jurisdiction to determine the merits of the case. The court is required to examine such an application as a matter of urgency and to respond to it by means of an enforceable judgment (ibid., § 97). For these reasons, the Court cannot find any circumstances that could have exempted the applicant from making use of the domestic remedies.
31.  In follows that in failing to lodge an action based on the provisions of the Civil Code seeking an order compelling medical personnel to assist her with home birth, the applicant failed to exhaust the domestic remedies, and that the application must be rejected under Article 35 §§ 1 and 4 of the Convention.
32.  This conclusion makes it unnecessary for the Court to examine the remaining objections and arguments raised by the parties.
For these reasons, the Court, unanimously,
Declares the application inadmissible.
Done in English and notified in writing on 27 June 2019.
Andrea TamiettiFaris Vehabović
Deputy RegistrarPresident

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