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THIRD
SECTION
CASE OF
KRIVOŠEJS v. LATVIA
(Application
no. 45517/04)
JUDGMENT
STRASBOURG
17 January 2012
This
judgment will become final in the circumstances set out in Article 44
§ 2 of the Convention. It may be subject to editorial revision.
In the case of Krivošejs v. Latvia,
The
European Court of Human Rights (Third Section), sitting as a Chamber
composed of:
Josep Casadevall,
President,
Corneliu Bîrsan,
Egbert
Myjer,
Ján Šikuta,
Ineta
Ziemele,
Nona Tsotsoria,
Kristina Pardalos,
judges,
and Santiago Quesada,
Section Registrar,
Having
deliberated in private on 13 December 2011,
Delivers
the following judgment, which was adopted on that date:
PROCEDURE
- The
case originated in an application (no. 45517/04)
against the Republic of Latvia lodged with the Court
under Article 34 of the Convention for the Protection of Human
Rights and Fundamental Freedoms (“the Convention”) by a
permanently resident “non-citizen” of the
Republic of Latvia, Mr Viktors Krivošejs (“the
applicant”), on 22 October 2004.
- The
applicant, who had been granted legal aid, was represented by Ms J.
Averinska, a lawyer practising in Rīga. The Latvian
Government (“the Government”) were represented by their
Agent, Mrs I. Reine.
3. The
applicant alleged, in particular, that he had not received adequate
medical assistance in prison and that he had not been released from
prison despite his medical condition.
- On
3 May 2007 the Court
decided to give notice of the application to the Government.
It was also decided to rule on the admissibility and merits of the
application at the same time (Article 29 § 1).
THE FACTS
I. THE CIRCUMSTANCES OF THE CASE
- The
applicant was born in 1974 and is currently serving a
sentence in Jelgava Prison.
- On
3 November 1987, at the age of thirteen, he was examined in a
neuropsychiatry centre and diagnosed with conduct disorder that had
resulted from early central nervous system damage. He was registered
with a psychiatrist, but did not pay any visits to the psychiatrist.
- On
21 February 1991 at the age of seventeen, he was again examined in a
neuropsychiatry centre with the same diagnosis. It was recommended
that he undergo an inpatient medical examination, but he failed to
arrange such an examination.
A. The applicant’s conviction and imprisonment
1. First set of criminal proceedings
- On
11 December 1997 the applicant was arrested.
- Following
hearings from 6 to 23 September 1999, on the latter date the Zemgale
Regional Court (Zemgales apgabaltiesa)
convicted the applicant of aggravated murder and robbery and
sentenced him to fifteen years’ imprisonment.
- On
appeal and having examined the results of the first inpatient
forensic psychiatric examination of the applicant (see paragraphs 23
and 24 below), the Criminal Chamber of the Supreme Court (Augstākās
tiesas Krimināllietu tiesu palāta) upheld the
ruling of the first-instance court.
2. Second set of criminal proceedings
- On
28 December 2000, after initial hearings in connection with a
charge of theft which had been brought against the applicant, the
Jelgava Court (Jelgavas
tiesa) ordered the second inpatient forensic psychiatric
examination of the applicant in view of concerns about his mental
health (see paragraphs 25 and 27 below).
- Further
hearings took place between May and December 2001. On 19 February
2002 the Jelgava Court ordered the third
inpatient forensic psychiatric examination of the applicant in view
of his behaviour during the trial (see paragraphs 28 to 31 below).
The experts conducting the examination were specifically asked to
consider if the applicant had been suffering from a mental illness
after February 2001. During this examination, a primary arachnoid
cyst in the applicant’s brain was discovered (see paragraphs 28
to 31 below).
- On
11 September 2002 the Jelgava Court ordered
the fourth inpatient forensic psychiatric examination. The
examination results showed that the cyst had doubled in size (see
paragraphs 32 and 33 below).
- Following
hearings from 24 to 28 December 2002, on the latter date the Jelgava
Court convicted the applicant of aggravated theft and sentenced him
to three years’ imprisonment, which term was less than the
statutory minimum of six years’ imprisonment for the crime
owing to his state of health, but found that he had full mental
capacity. The sentences handed down in the first and second sets
criminal of proceedings were combined to a total of fifteen years and
ten months’ imprisonment.
- On 14 February 2003 the Zemgale Regional Court
admitted an appeal brought by the applicant against the ruling of the
first-instance court and scheduled the first appellate hearing for 1
April 2003. During that hearing the applicant suddenly felt ill. An
ambulance was called to his aid and pain-relieving injections were
administered to him. On the same date, the proceedings were stayed
owing to the deterioration of the applicant’s state of health.
On 7 May 2003 the applicant was informed that the appellate
proceedings would commence when his state of health improved.
- On
22 January 2004 the Zemgale Regional Court upheld the applicant’s
conviction but reduced the total term of imprisonment to fifteen
years. It appears that no appeal on points of law was lodged.
B. Medical examinations in detention
- During
his pre-trial detention and for the first years of his sentence the
applicant was mainly held in two prisons, both of which were located
next to each other in Rīga – Matīsa
Prison and Central Prison. On 1 November 2008 these prisons were
merged into one Rīga Central Prison (Rīgas
centrālcietums).
- On
2 November 2006 a request by the applicant to serve his sentence in
Jelgava Prison was granted and he was
transferred to serve his sentence there.
- At
various times the applicant was admitted to a prison hospital, which
provided somatic and psychiatric inpatient care for sentenced and
remand prisoners from all of the prisons in Latvia. The hospital was
located on the premises of Central Prison in Rīga. On 1 November
2007 the hospital in Central Prison was closed.
- On
26 June 2008 the applicant was recognised as being Category 3
disabled.
1. Outpatient examinations
- On 10 March 1998 the applicant underwent an outpatient
forensic psychiatric examination (ambulatorā
tiespihiatriskā ekspertīze)
in a neuropsychiatric hospital in Jelgava
(Jelgavas psihoneiroloģiskā
slimnīca). This examination had been ordered by the
investigative authority. The experts found that the applicant had
antisocial personality disorder but recommended that the courts
declare him to have full mental capacity (pieskaitāms).
- On 21 March 2000 the applicant underwent an outpatient
forensic psychiatric examination at the prison hospital. This
examination had been ordered by the appellate court in connection
with the first set of criminal proceedings in view of the
deterioration of the applicant’s health after the fight on 5
December 1998 (see paragraph 35 below). The experts did not reach any
conclusions, but recommended an inpatient examination of the
applicant because he had complained of memory impairment.
2. First inpatient examination
- On 28 June 2000 the applicant was admitted to a
psychiatry centre (Psihiatrijas centrs)
for one month for the purpose of an inpatient forensic psychiatric
examination (stacionārā
tiespsihiatriskā ekspertīze). He was examined by
an ophthalmologist, a neurologist, a therapist, a narcologist and a
psychologist. Several clinical tests, an ultrasound test and an
electroencephalograph (“EEG test”) were carried out. The
applicant told the doctors, among other things, that he had suffered
memory impairment after the events of 5 December 1998 (see
paragraph 35 below).
- On 27 July 2000 the experts issued their report, no.
51-2000. They found that the applicant had antisocial and borderline
personality disorders. The examination had not revealed any
particular memory impairment. No mental illness had been detected.
The experts opined that there were no demonstrable changes in the
applicant’s mental state which would have interfered with his
ability to understand and direct his actions. He could participate in
and follow the court hearings. It was recommended that the courts
declare him to have full mental capacity.
3. Second inpatient examination
- The applicant was admitted to the psychiatry centre
again on 22 January 2001 for one month. During his stay at the
centre he was examined by an ophthalmologist, a neurologist and a
psychologist; several clinical tests and an EEG test were carried
out. The latter showed minor negative dynamics compared to the
previous EEG test results. Otherwise, the results of the second
examination were identical to the first one.
- On
16 February 2001 the experts issued their report, no. 18-2001. The
experts opined that any changes in the applicant’s mental state
had not interfered with his ability to understand and direct his
actions at the time of the offence.
- One of the experts who had conducted this examination
gave evidence at the applicant’s trial in September 2001 before
the Jelgava Court, stating that no trauma
to the applicant’s head that could have influenced his mental
health had been detected. She stated that the trauma that the
applicant had sustained in 1998 had not affected his memory.
4. Third inpatient examination
- The applicant was admitted to the psychiatry centre
again on 18 March 2002 and remained there until 2 May 2002. He
was examined by an ophthalmologist, a neurologist and a therapist;
several clinical tests and an EEG test were carried out. The
applicant was also subjected to an experimental psychological test.
- In
addition, on 24 April 2002 a computed tomography (CT) scan on the
applicant’s head was carried out and a primary arachnoid cyst
stretching across the left temporal and frontal lobes measuring
4x5x7 cm was discovered. He was then examined by a neurosurgeon,
who recommended mild dehydration for the next three months. After
that period, he suggested another CT scan to determine a further
course of treatment.
- On
30 April 2002 the experts issued their report, no. 53-2002. They
opined that the applicant did not suffer from a mental illness but
that he had an organic personality disorder, as well as a mild
cognitive disorder. He suffered from sudden attacks of temporary and
mild psychotic conditions. Therefore, at that time the applicant was
not fit to participate in the court hearings – he had to be
observed and treated in the prison hospital’s neuropsychology
department. Another CT scan had to be performed after three months in
order to decide on the need for neurosurgery.
- One of the experts who had conducted this examination
gave evidence at the applicant’s trial in December 2002 before
the Jelgava Court. It was her opinion that
the applicant was suffering from a mental disorder, which was
comparable to a mental illness. She explained that, prior to the
third inpatient examination, it had been considered that the
applicant had been fabricating his symptoms. According to her, the
applicant ought to receive treatment – the number of epileptic
seizures (lēkmes) he was
suffering ought to be reduced, as every seizure damaged his brain
cells. A lack of treatment could lead to dementia (plānprātība).
It was her view that the applicant’s condition necessitated
treatment under the supervision of a neurologist and regular
examinations by a neurosurgeon, a psychiatrist and a psychologist.
5. Fourth inpatient examination
- During this examination another CT scan revealed that
the cyst had grown to the size of 10x10x5 cm. The doctors
described it as “huge” and “visually impressive”.
According to the neurologist and neurosurgeon, no particular
treatment or surgery was necessary. It was recommended to monitor the
applicant’s medical condition and, if necessary, to carry out
another CT scan, EEG test and other examinations. The expert’s
report, no. 109-2002 of 31 October 2002, concluded that the
applicant did not suffer from a mental illness. It was recommended
that he be declared to have full mental capacity.
- One of the experts who had conducted this examination
gave evidence at the applicant’s trial in December 2002 before
the Jelgava Court. According to her, the
applicant’s head injury in 1998 might have caused the cyst to
shift. She also testified that no treatment was necessary for the
applicant, save for consultations with a neurologist. The expert
asserted that an individual could live with such a cyst for many
years, provided it was not affected by blows or other impacts. A cyst
would not normally cause any disturbance provided that the individual
did not suffer any injuries. The applicant ought to avoid any impacts
to his head.
C. Medical assistance in prison and its review
1. Medical assistance
- Prior
to 5 December 1998 the applicant had not complained to the prison
medical staff of pain in his head or memory impairment. He had made
other complaints such as, for example, of toothache, which had been
addressed by admitting him to the prison hospital for treatment
between 27 November and 4 December 1998.
- On 5 December 1998 the applicant was involved in a
fight with other detainees in Central Prison in Rīga and
received a blow to his head which caused a concussion and knocked him
unconscious for a short while. The applicant was taken to the prison
hospital on a stretcher and admitted to the neuropsychology
department for examination. The applicant complained of headache and
dizziness. The applicant had bruises on his neck and in the area of
his back and chest. No damage to his central or peripheral nervous
systems was detected after an examination by a neurologist. No
fractures were detected on his head and chest after an X-ray
examination. The applicant refused to receive pain relieving
injections. He was discharged from the hospital ten days later.
- On
9 April 1999 the applicant consulted a psychiatrist and complained of
headache, insomnia, hearing voices, anxiety, agitation and
irritability. The applicant explained that the reason for his refusal
to receive injections after the events of 5 December 1998 had been
his fear of being poisoned. The doctor concluded that the applicant
was fabricating his symptoms.
- During
the forensic outpatient examination on 21 March 2000 the applicant
complained of memory impairment. He also raised this complaint during
the first and the second inpatient forensic examinations, in June
2000 and January 2001 respectively. Finally, during the third
inpatient forensic examination in March 2002 he complained of
constant headache.
- On 28 March 2003 the head of
the medical unit of Matīsa Prison reported
that the applicant’s medical condition had deteriorated and
that medical treatment was necessary.
- According to the information provided by the
Government, the applicant was admitted to the prison hospital for the
following periods:
between 3 and 20
January 2003;
between 20 February
and 6 March 2003;
between 6 November
and 4 December 2003;
between 8 and 29
April 2004;
between 27 January
and 17 February 2005;
between 26 May and 7
June 2005;
between 16 and 22
September 2005;
between 25 October and 11 November 2005; and
between 17 May and 21 June 2006.
As
concerns the applicant’s treatment for those periods the
Government referred to the fact that: (a) the applicant had been
examined by a neurologist, a neurosurgeon, an ophthalmologist, a
psychiatrist, a radiologist and an otolaryngologist; (b) two CT scans
of the applicant’s head had been carried out; and (c) the
necessary clinical examinations had been performed.
- According to the Government, in 2007 the applicant had
twelve consultations with the medical staff at Jelgava Prison. The
applicant was admitted to the prison hospital on 15 October 2007 and
remained there at least until 29 October 2007. During that period he
was examined by a neurologist, a surgeon and an ophthalmologist and
received some medication (for example, diazepam and piracetam).
- On 11 December 2007 and 12 June 2008 two more CT
scans of the applicant’s head were carried out. The size of the
arachnoid cyst remained largely unchanged.
2. MADEKKI monitoring
- From 17 January to 17 February 2003, at the
applicant’s request, the Inspectorate for Quality Control of
Medical Care and Working Capability (“the MADEKKI”)
examined the adequacy of the applicant’s medical treatment in
prison. It was concluded that the applicant’s medical condition
had deteriorated and that medical treatment was necessary, including
dehydration.
- On 19 February 2003 the MADEKKI informed the applicant
that it had advised the Prisons Administration to ensure further
medical examinations were carried out and to arrange for him to have
a consultation with a neurosurgeon. It appears that a CT scan of the
applicant’s head was carried out on 28 February 2003 and a
neurosurgeon examined its results. The MADEKKI concluded on 17 March
2003 that its recommendations had been implemented.
- From 10 January to 13 February 2004, at the
applicant’s request, the MADEKKI examined the adequacy of the
applicant’s medical treatment for the second time. It concluded
that further medical examinations had been carried out but that the
applicant had not had a consultation with a neurosurgeon in person.
No surgery was needed. A further CT scan was recommended after six
months.
- On 13 February 2004 the MADEKKI informed the applicant
that it had advised the Prisons Administration to ensure further
medical examinations were carried out and to arrange for him to have
a consultation with a neurosurgeon.
- From 27 April to 25 May 2005, at the applicant’s
request, the MADEKKI examined the adequacy of the applicant’s
medical treatment for the third time. It was established that the
applicant was being examined twice a year by a neurologist and
an ophthalmologist. The conclusion was that further CT scans and
consultations with a neurosurgeon were not necessary, as no damage to
his health had been detected.
- From 7 November 2005 to 2 January 2006, at the
applicant’s request, the MADEKKI examined the adequacy of the
applicant’s medical treatment for the fourth time and found no
shortcomings in the applicant’s medical care.
D. Applications for release
- On
8 March 2004, following a request by the applicant, the prosecutor’s
office refused to order a forensic medical examination with a view to
the possible release of the applicant on health grounds, as it
determined that he had not fallen ill with a mental illness or
another illness. It was noted that his medical condition was
congenital.
- At
the same time, Matīsa Prison’s governor asked the
prosecutor’s office to order a forensic medical examination. In
reply, the prosecutor’s office instructed the Prisons
Administration to commission a medical panel to decide on the
necessity of such an examination. It appears that they reached the
conclusion that the forensic examination was not necessary because,
at that time, the applicant was not suffering from any mental
disorder.
- On
16 March 2005, following a repeated request by the applicant, relying
on the previous year’s findings by the medical panel, the
prosecutor’s office refused to order a forensic examination.
- On
13 May 2005, on the applicant’s complaint, a superior
prosecutor explained that because the applicant’s medical
condition had not deteriorated a forensic examination would not be
ordered.
- On
26 August 2005, following a request by the applicant, the
prosecutor’s office instructed the Prisons Administration’s
medical unit to examine the applicant’s state of health and to
decide if a medical examination was necessary with a view to the
possible release of the applicant on health grounds.
- On
23 September 2005 the Prisons Administration informed the applicant
that its medical unit had decided that a medical examination was not
necessary because his state of health continued to be satisfactory.
- At
the end of 2005, the applicant complained to the prosecutor’s
office of the deterioration of his state of health.
- On
the prosecutor’s request, on 15 June 2006, a medical
examination of the applicant with a view to his possible release was
carried out by medical staff of the Prisons Administration: three
psychiatrists, one neurologist and one internist. They examined the
applicant in person, his medical records and his medical condition
and arrived at the conclusion that there were no grounds to initiate
the applicant’s release under section 116 of the Sentence
Enforcement Code.
- On
29 June 2006 the Prisons Administration informed the applicant that
they did not have the authority to order a forensic medical
examination. It was noted that the applicant’s state of health
was satisfactory.
- On
14 July 2006 the prosecutor’s office once again confirmed to
the applicant that there were no grounds to order a forensic medical
examination.
II. RELEVANT DOMESTIC LAW
- According to the relevant paragraphs of section 59 of
the Criminal Law (Krimināllikums),
in force since 1 April 1999, if a convicted person has fallen ill
with a mental illness which has interfered with his or her ability to
understand and direct his or her actions, or with another severe and
incurable illness after the pronouncement of a judgment, a court may
release that person from serving the remainder of their sentence.
- Section 640, paragraph 1 of the Law of Criminal
Procedure (Kriminālprocesa likums),
in force since 1 October 2005, provides that a judge may release a
convicted person from serving the remainder of his or her sentence if
he or she has developed a mental disorder and for that reason cannot
remain in custody and needs to receive treatment. A medical
examination must be commissioned for that purpose. Before the entry
into force of the Law of Criminal Procedure, the relevant provision
was contained in section 364 of the Code of Criminal Procedure
(Kriminālprocesa kodekss).
- According to section 116 of the Sentence Enforcement
Code (Sodu izpildes kodekss), if a
convicted person has fallen ill with a mental illness or another
severe and incurable illness owing to which he or she is unable to
serve the remainder of his or her sentence, the relevant penal
institution has to order that a medical examination is carried out
and, in view of its results, send an application for release to the
appropriate court. Prior to the entry into force of legislative
amendments that took effect on 9 December 2004, a forensic
psychiatric or medical examination was required and could only be
ordered by the prosecutor’s office. After those amendments came
into force, the type of medical examination required was not
specified.
THE LAW
I. ALLEGED VIOLATION OF ARTICLE 3 OF THE CONVENTION ON
ACCOUNT OF INADEQUATE MEDICAL ASSISTANCE
- The
applicant complained that the medical assistance
provided to him within the penal system had been inadequate and that
his medical condition had deteriorated. The Court will examine this
complaint under Article 3 of the Convention, which reads as follows:
“No one shall be subjected to torture or to
inhuman or degrading treatment or punishment.”
A. Admissibility
- The
Court notes that this complaint is not manifestly ill-founded within
the meaning of Article 35 § 3 (a) of the Convention. It further
notes that it is not inadmissible on any other grounds. It must
therefore be declared admissible.
B. Merits
1. The parties’ submissions
- The
Government pointed out that the applicant’s main concern in
this regard was the primary arachnoid cyst which had been discovered
in 2002. They asserted that the cyst had not required any specific
treatment as long as there had been no objective indications that it
had influenced the applicant’s medical condition. The
Government took the view that periodical CT scans of the applicant’s
head, accompanied by consultations with a neurologist and an
ophthalmologist, had been sufficient to determine any changes in the
applicant’s medical condition that would have warranted
treatment.
- The
Government maintained that immediate therapy or surgery would only
have been required if the applicant’s medical condition had
deteriorated, such as through the deterioration of his eyesight or as
a result of epilepsy attacks. The Government relied on the MADEKKI’s
monitoring activity to argue that the applicant’s medical
condition had not deteriorated and thus no immediate therapy or
surgery had been necessary.
- Finally,
relying on the Court’s case-law and the standard of proof
“beyond reasonable doubt” (see Berliński v.
Poland, nos. 27715/95 and 30209/96, § 59, 20 June
2002), the Government submitted that the applicant had not
sufficiently proved that he had not been provided with adequate
medical assistance.
- The
applicant submitted that his medical condition had deteriorated after
the events of 5 December 1998 in Central Prison in Rīga and that
the penal authorities had not provided any medical treatment to
address his complaints, as they had considered his symptoms to be
fabricated for over three years. In support of this argument, he
relied on expert evidence given during his trial to the effect that
he suffered from a mental illness (see paragraph 31 above).
- The
applicant further noted, first of all, that after the third inpatient
examination, during which on 24 April 2002 the arachnoid cyst
had been discovered, he had not received any treatment. Secondly,
during the fourth inpatient examination it had been discovered that
the arachnoid cyst had grown to double its previous size. Thirdly, he
had only received some treatment in 2003 after he had himself raised
complaints with the MADEKKI. In the applicant’s submission,
these facts attested to the inadequacy of his medical care.
- In
addition, the applicant disputed the Government’s assertion
that he had not required any specific treatment. To prove this point,
he referred to the fact that medication such as diazepam and
piracetam had been prescribed for him. None of those medicines,
however, had been used to treat a mental illness. In the applicant’s
submission, the prescription of these drugs had therefore been aimed
at suppressing his neurological symptoms, the monitoring of which had
been necessary for the proper supervision of his medical condition.
He concluded that this failing had resulted in a breach of Article 3
of the Convention.
2. The Court’s assessment
(a) General principles
- From
the outset, concerning the facts that are in dispute, the Court
reiterates its jurisprudence confirming the standard of proof “beyond
reasonable doubt” in its assessment of evidence. Such proof may
follow from the coexistence of sufficiently strong, clear and
concordant inferences or of similar unrebutted presumptions of fact
(see Farbtuhs v. Latvia, no. 4672/02, § 54, 2
December 2004).
- The Court further recalls that Article 3 of the
Convention imposes an obligation on the State to protect the physical
well-being of persons deprived of their liberty by, among other
things, providing them with the requisite medical assistance (see
Farbtuhs, cited above, § 51).
- However,
the mere fact that a detainee was seen by a doctor and prescribed a
certain form of treatment cannot automatically lead to the conclusion
that the medical assistance was adequate (see Hummatov
v. Azerbaijan, nos. 9852/03 and 13413/04, § 116, 29
November 2007). The authorities must also ensure that where
necessitated by the nature of a medical condition the diagnoses and
treatment are carried out in a timely fashion and that supervision,
where necessary, is regular and systematic and involves a
comprehensive therapeutic strategy aimed at curing the detainee’s
diseases or preventing their aggravation, rather than addressing them
on a symptomatic basis (see Popov v. Russia, no. 26853/04,
§ 211, 13 July 2006; and Hummatov, cited above,
§ 114). The authorities must also show that the necessary
conditions were created for the prescribed treatment to be actually
followed through (see Holomiov v. Moldova, no. 30649/05,
§ 117, 7 November 2006, and Hummatov, cited above,
§116).
(b) Application of these principles to the
present case
- The
Court notes that the main issue to be determined under this head is
whether or not the respondent State has been able to provide adequate
treatment for the applicant’s medical condition, which had
developed long before his placement in detention. The applicant’s
main concern in this regard is promptness on two accounts, firstly,
as concerns the diagnosis of his medical condition and, secondly, as
concerns the treatment of that condition.
- In
its assessment of these issues, the Court considers that it must be
guided by the due diligence test, since the State’s obligation
to cure a seriously ill prisoner is that of means, not of result.
Notably, the mere fact of a deterioration of the applicant’s
medical condition, albeit capable of raising, at an initial stage,
doubt concerning the adequacy of the treatment in prison, cannot not
suffice, as such, for a finding of a violation of Article 3 of the
Convention, if, on the other hand, it can be established that the
relevant domestic authorities have in a timely fashion resorted to
all reasonably available medical measures in a conscientious effort
to hinder the development of the condition in question.
- First
of all, the Court has been called upon to examine whether the
applicant received a timely diagnosis of his medical condition. It is
true that prior to the third inpatient examination, during which an
arachnoid cyst was discovered on the applicant’s brain for the
first time, the applicant had been examined on four occasions by
several medical specialists on an outpatient and an inpatient basis
and several tests had been carried out (see paragraphs 21 to 23
and 25 above). The specialists’ conclusion was that the
applicant did not suffer from a mental illness and that he had full
mental capacity. That conclusion was not altered upon the discovery
of the arachnoid cyst on the applicant’s brain on 24 April 2002
during the third inpatient examination. Even if the Court recognises
that it took some time and a particular examination – a CT scan
of the applicant’s head – for the domestic authorities to
diagnose the applicant’s medical condition, in the particular
circumstances of the case and in view of the fact that, as confirmed
by the domestic criminal courts, the applicant continued to be
considered as having full mental capacity before and after the
discovery of his primary arachnoid cyst, the Court considers that the
time and manner in which the applicant’s medical condition was
diagnosed was adequate.
- The
Court will now turn to the second part of the applicant’s
complaint, namely, the allegedly inadequate medical assistance after
the diagnosis of the arachnoid cyst. The Court in this
connection has to determine if the applicant needed regular medical
assistance, whether he was deprived of it as he claims and, if so,
whether this amounted to inhuman or degrading treatment contrary to
Article 3 of the Convention (see Hummatov, cited above, §
111; and Kaprykowski v. Poland, no. 23052/05, § 70,
3 February 2009).
- Having
due regard to all the information at its disposal, the Court notes
that the medical assistance provided to the applicant following the
detection of the arachnoid cyst appears to have been adequate. Even
though between the third and the fourth inpatient examinations the
arachnoid cyst had grown in its size, the medical specialists
concluded that it was not adversely affecting the applicant’s
health in any way. The mild dehydration that had been prescribed
after the third inpatient examination was followed through.
- The
evidence also confirms that the applicant’s medical condition
did not in itself necessitate any particular treatment. While it is
true that after the third inpatient medical examination it remained
uncertain if surgery was necessary in the applicant’s case, the
following medical examinations confirmed that it
was not (see paragraphs 32, 43, 44 and 46 above). Similarly, the
results of the MADEKKI’s monitoring activity confirmed that the
applicant’s condition did not require treatment, save for
consultation by a specialist and further medical examinations when
necessary (see paragraphs 43, 45, 46 and 47 above). The Court notes
that the medical examinations and consultations recommended were
carried out, in particular, several follow-up CT scans (see
paragraphs 39 and 41 above). Admittedly, in its second review the
MADEKKI found a shortcoming in the applicant’s medical care in
the prison hospital, in that he had not been examined by a
neurosurgeon in person. However, this shortcoming was later remedied
and the neurosurgeon’s finding remained the same – no
surgery was necessary in the applicant’s case.
- The
applicant relied on the expert evidence given during his trial to
argue that he suffered from a mental illness and that it had been
necessary to provide treatment under the supervision of a neurologist
in order to prevent the deterioration of his condition (see paragraph
31 above). This medical opinion, however, was given by an expert who
had only examined the applicant once and whose opinion was not shared
by other experts who conducted the third inpatient examination.
Moreover, several subsequent medical examinations did not confirm her
view. It was also rejected by the domestic criminal courts in holding
that the applicant had full mental capacity. Having duly examined all
the material in its possession and noting that there is not a single
piece of unrebutted evidence attesting to the fact that the applicant
suffered from a mental illness, the Court concludes that the
applicant’s medical condition did not require any particular
treatment, contrary to what has been claimed by the applicant.
- As
transpires from the facts of the case, the applicant’s sole
medical emergency was the sudden pain attack he experienced during
the hearing of 1 April 2003. The Court considers that it was
adequately addressed by calling for an ambulance, whose personnel
administered pain-relieving injections to the applicant. The
applicant did not claim that this was insufficient and that other
treatment should have been provided instead. He admitted that he
received some treatment in 2003.
- Finally,
the applicant’s reliance on the fact that he was prescribed
certain medicines (diazepam and piracetam) that are not used to treat
mental illness only strengthens the argument that he did not, in
fact, suffer from such an illness. The Court considers that the
domestic authorities cannot be criticised for addressing the
applicant’s other complaints in circumstances where the medical
condition under discussion did not require any particular treatment.
- The
foregoing considerations are sufficient to enable the Court to
conclude that the overall medical assistance provided to the
applicant was adequate.
- It
follows that there has been no violation of Article 3 of the
Convention.
II. ALLEGED VIOLATION OF ARTICLE 3 OF THE CONVENTION ON
ACCOUNT OF THE AUTHORITIES’ REFUSAL TO RELEASE THE APPLICANT ON
HEALTH GROUNDS
- The
applicant complained of his continued detention, in spite of his
deteriorating medical condition. The Court will examine this
complaint under Article 3 of the Convention.
- The
Government explained the procedure for release on health grounds,
referring to applicable domestic law (see paragraph 60 above). They
stated, on the one hand, that a prosecutor may order a forensic
examination for a person that has fallen ill with a mental illness.
If the conclusion that the person needs to be treated in a
psychiatric hospital is reached, the prison administration then
lodges a request before the courts under section 640 of the Law of
Criminal Procedure (see paragraph 59 above). On the other hand, if a
person has fallen ill with another severe and incurable illness a
simple medical examination is carried out upon the request of the
Prisons Administration or a prosecutor.
- As
regards the applicant’s case, the Government noted that he had
never suffered from a mental illness and thus that the prosecutor’s
refusal to order a forensic examination had been justified. As
concerns the other medical examinations, the Government pointed out
that their conclusions had been that the applicant’s medical
condition was satisfactory and thus that continued imprisonment was
appropriate. Accordingly, there had been no grounds to bring an
application before the courts seeking the release of the applicant on
health grounds. Finally, the Government drew a distinction between
the applicant’s case and the above-cited case of Mr Farbtuhs.
- The
applicant was dissatisfied that a forensic medical examination had
been denied. In his submission, his examination by prison medical
staff had not been sufficient as they had not possessed the necessary
medical qualifications.
- There
are at least three particular elements to be considered in relation
to the compatibility of an applicant’s health with his stay in
detention: (a) the medical condition of the prisoner; (b) the
adequacy of the medical assistance and care provided in detention;
and (c) the advisability of maintaining the detention measure in view
of the state of health of the applicant (see Farbtuhs, cited
above, § 53).
- In
view of the Court’s conclusion above that the applicant’s
primary arachnoid cyst did not call for any particular medical
treatment and that the overall medical assistance provided to him was
adequate, the Court finds that that the applicant’s complaint
under this head is manifestly ill-founded and must be rejected in
accordance with Article 35 §§ 3 (a) and 4 of the
Convention.
III. ALLEGED VIOLATION OF ARTICLE 13 OF THE CONVENTION
- The
applicant alleged that he had not had an
effective domestic remedy to complain about the medical assistance
provided to him in custody. Article 13 of the Convention reads as
follows:
“Everyone whose rights and freedoms as set forth
in [the] Convention are violated shall have an effective remedy
before a national authority notwithstanding that the violation has
been committed by persons acting in an official capacity.”
- The
Government argued that the MADEKKI’s monitoring activity was an
effective remedy for detained and convicted persons to complain about
the quality of medical assistance provided to them in prison. They
submitted that it was available not only in theory, but also in
practice, as evidenced by the facts of the present case.
- They
further submitted that an appeal could be lodged against the
MADEKKI’s findings to its director and then, in turn, to the
administrative courts.
- The applicant, for his part, referring to domestic
case-law, did not accept that monitoring by the MADEKKI was an
effective remedy.
- In view of the above finding of no violation of
Article 3 of the Convention on account of the medical assistance
provided to the applicant, the Court concludes that the applicant did
not have an arguable claim to a remedy for that complaint under
Article 13 of the Convention.
- It
follows that this complaint is manifestly ill-founded and must be
rejected in accordance with Article 35 §§ 3 and 4 of the
Convention
IV. OTHER ALLEGED VIOLATIONS OF THE CONVENTION
- Lastly,
citing various Articles of the Convention, the applicant
claimed to have been the victim of numerous human rights violations
during the period from 1993 to 1997, as well as during the first and
second sets of criminal proceedings against him.
- However,
in the light of all the material in its possession, and in so far as
the matters complained of are within its competence, the Court finds
that they do not disclose any appearance of a violation of the rights
and freedoms set out in the Convention or its Protocols.
- It
follows that this part of the application is manifestly ill-founded
and must be rejected in accordance with Article 35 §§ 3 (a)
and 4 of the Convention.
FOR THESE REASONS, THE COURT UNANIMOUSLY
- Declares the complaint concerning allegedly
inadequate medical assistance admissible and the remainder of the
application inadmissible;
- Holds that there has been no violation of
Article 3 of the Convention.
Done in English, and notified in writing on 17 January 2012, pursuant
to Rule 77 §§ 2 and 3 of the Rules of Court.
Santiago Quesada Josep
Casadevall
Registrar President