AFFAIRE JIVAN c. ROUMANIE

• Judgment Date: 08 February 2022
• ECLI: ECLI:CE:ECHR:2022:0208JUD006225019
• Counsel: MARCU D.M.
• Date: 08 February 2022
• Application Number: 62250/19
• Court: Fourth Section (European Court of Human Rights)
• Respondent State: Rumania
• Applied Rules: 8;8-1;35;35-1;41

FOURTH SECTION

CASE OF JIVAN v. ROMANIA

(Application no. 62250/19)

JUDGMENT

Art 8 • Private life • Failure to ensure effective protection for an elderly person through inadequate assessment of the severity of his disability, thereby depriving him of a personal assistant as provided by domestic law • Failure to strike a fair balance between competing interests

STRASBOURG

8 February 2022

FINAL

08/05/2022

This judgment has become final under Article 44 § 2 of the Convention. It may be subject to editorial revision.

In the case of Jivan v. Romania,

The European Court of Human Rights (Fourth Section), sitting as a Chamber composed of:

Yonko Grozev, President,
Faris Vehabović,
Iulia Antoanella Motoc,
Gabriele Kucsko-Stadlmayer,
Pere Pastor Vilanova,
Jolien Schukking,
Ana Maria Guerra Martins, judges,
and Ilse Freiwirth, Deputy Section Registrar,

Having regard to:

the application (no. 62250/19) against Romania lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by a Romanian national, Mr Ioan-Doroteu Jivan (“the applicant”), on 22 November 2019;

the decision to give notice to the Romanian Government (“the Government”) of the complaints concerning the right to respect for the applicant’s private life (Article 8 of the Convention) and the length of the proceedings (Article 6 of the Convention) and to declare the remainder of the application inadmissible;

the parties’ observations;

the letter by the applicant’s son and only heir, Mr Ioan-Dan Jivan, informing the Court of the applicant’s death and of his wish to pursue the present application;

Having deliberated in private on 18 January 2022,

Delivers the following judgment, which was adopted on that date:

INTRODUCTION

1. The application concerns allegations that the domestic authorities wrongly assessed the severity of the applicant’s disability, thus depriving him of the possibility of benefiting from a personal assistant, and that the proceedings concerning that assessment had lasted too long. It was communicated under Articles 8 and 6 § 1 of the Convention respectively.

THE FACTS

2. The applicant was born in 1930 and died in 2020. He lived in Oradea. He was represented by Mr D.M. Marcu, a lawyer practising in Oradea. On 27 April 2020 Mr Ioan-Dan Jivan, his son and only heir, expressed his wish to continue the proceedings.

3. The Government were represented by their Agent, most recently Ms O.F. Ezer, of the Ministry of Foreign Affairs.

4. The facts of the case, as submitted by the parties, may be summarised as follows.

5. In 2017 the applicant was in his late eighties. He had a partially amputated leg, which he lost in 2015, when he was eighty-five years old, and suffered from several medical conditions, such as cataracts, loss of hearing and incontinence. He needed a wheelchair to move around and had recently become bedridden as he had lost the strength to manipulate his wheelchair. He lived on the fourth floor of a building and was helped in his daily activities by his son. There were no neighbours or other family members nearby to offer support.

6. On 27 June 2017 a physician acting at the request of the Bihor Commission for the Assessment of Adults with Disabilities (“the Commission”, see paragraph 14 below) evaluated the applicant’s functional status according to the index of independence in activities of daily living (“the ADL index”). She established the applicant’s score as follows: zero points in relation to personal hygiene, dressing, and using the bathroom – with occasional incontinence (one point) –, and two points in relation to feeding. The applicant’s overall score was three points (see paragraphs 16 to 19 below).

7. On 11 July 2017, following a visit to the applicant’s flat to assess his living arrangements and their compatibility with his medical situation, the Commission produced a social enquiry report. It noted that the applicant was bedridden, and could move around his flat only in a wheelchair. He needed help with feeding, moving and transport, using means of communication, taking care of his finances and medication. He was fully dependent on support for his personal hygiene, dressing, preparing food, housework, and grocery shopping. The report also mentioned that the applicant was living on his own and received money, food, and help with housekeeping from his son.

8. On 25 September 2017 an inspector from the Service for the Complex Evaluation of Adults with Disabilities of the Bihor County Directorate General for Social Welfare and Child...