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DYBEKU v. ALBANIA - 41153/06 [2007] ECHR 1109 (18 December 2007)
URL: http://www.bailii.org/eu/cases/ECHR/2007/1109.html
Cite as:
[2007] ECHR 1109,
[2009] MHLR 1,
[2008] Prison LR 360
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FOURTH
SECTION
CASE OF DYBEKU v. ALBANIA
(Application
no. 41153/06)
JUDGMENT
STRASBOURG
18
December 2007
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 Dybeku v. Albania,
The
European Court of Human Rights (Fourth Section), sitting as a Chamber
composed of:
Sir Nicolas Bratza,
President,
Mr J. Casadevall,
Mr G. Bonello,
Mr K.
Traja,
Mr S. Pavlovschi,
Mr J. Šikuta,
Mrs P.
Hirvelä, judges,
and Mr T.L. Early, Section
Registrar,
Having
deliberated in private on 27 November 2007,
Delivers
the following judgment, which was adopted on that date:
PROCEDURE
The
case originated in an application (no. 41153/06) against the Republic
of Albania lodged with the Court under Article 34 of the Convention
for the Protection of Human Rights and Fundamental Freedoms (“the
Convention”) by an Albanian national, Mr Ilir Dybeku (“the
applicant”), on 25 September 2006.
The
applicant was represented by Mr Sh. Syri, a lawyer practising in
Berat. The Albanian Government (“the Government”) were
represented by their Agent, Mrs S. Mëneri of the Ministry of
Foreign Affairs.
The
applicant alleged, in particular, that while in prison his conditions
of detention and the medical treatment he received were inadequate in
view of his state of health. Moreover, he alleged a violation of
Article 6 of the Convention on account of the unfairness of the
proceedings concerning the inadequacy of his detention conditions in
relation to his state of health.
On
14 December 2006 the President of the Fourth Section of the Court
decided to give notice of the application to the Government. Under
the provisions of Article 29 § 3 of the Convention, it was
decided to examine the merits of the application at the same time as
its admissibility.
On
the same date the application was given priority under Rule 41 of the
Rules of Court.
THE FACTS
I. THE CIRCUMSTANCES OF THE CASE
The
applicant was born in 1971 and is currently serving a prison sentence
in Peqin High Security Prison.
A. Circumstances leading to the arrest of the applicant
From
1996 onwards the applicant has been suffering from chronic paranoid
schizophrenia. For many years he has received in-patient treatment in
various psychiatric hospitals in Albania.
On
23 August 2002 three persons died, including two children aged 10 and
13, and others were injured as a result of explosives placed in the
applicant's sister's family's flat.
On
24 August 2002 criminal proceedings were instituted against the
applicant, who, on the same day, was arrested and charged with one
count of voluntary homicide, inter alia, of children and one
count of illegal possession of explosives. The applicant was placed
in the pre-trial detention facility of Durrës Police
Commissariat, where he shared a cell with an unspecified number of
prisoners.
B. The applicant's trial
On
27 May 2003, on the basis of a medical report which concluded that at
the time of the commission of the offence the applicant's mental
disorder was in a period of remission, the Durrës District Court
ruled that the applicant was able to stand trial. Subsequently, the
court found the applicant guilty and sentenced him to life
imprisonment.
On
4 June 2003 the applicant's counsel lodged an appeal with the Durrës
Court of Appeal, claiming that the proceedings had been unfair since
the experts' report had been biased and unsubstantiated. He asked the
court to order a new medical report in order to establish his state
of health.
On
4 September 2003 and 2 March 2004 respectively, the Durrës Court
of Appeal and the Supreme Court upheld the District Court's decision.
Moreover, the domestic courts dismissed the applicant's request for a
fresh medical examination. They held that the first medical
assessment had been performed by impartial professionals and had
complied with procedural safeguards.
C. The applicant's health problems while in detention
Since
December 2003 the applicant has been transferred to three different
prisons to serve his sentence, namely Tirana Prison no. 302, Tepelene
Prison and Peqin Prison, where he is currently being held. He has
shared cells with other inmates who were in good health and has
received the same treatment as them, notwithstanding his state of
health. He has also regularly visited Tirana Prison's hospital, where
he has been treated as an in-patient.
Given
the applicant's increasingly disturbed state of mind, on 7 January
2005 his counsel initiated proceedings before the Tirana District
Court seeking his release or transfer to a medical facility on the
ground that his detention conditions were inappropriate to his state
of health and put his life at risk. The applicant's counsel requested
the court to order that the applicant be examined by psychiatric
experts. The request was based on medical reports issued by
practitioners who had treated the applicant in the period from March
to April 2003.
On
11 April 2005 the Tirana District Court dismissed the request as
unsubstantiated since the medical reports submitted by the
applicant's counsel failed to prove that the conditions of his
detention posed any threat to his life or state of health.
On
27 September 2005 and 17 February 2006 the Tirana Court of Appeal and
Supreme Court respectively upheld the District Court's decision.
According to the applicant, the Supreme Court's decision was not
served on him until 3 April 2006.
On
25 June 2007 the Constitutional Court dismissed an appeal by the
applicant on the ground that his claims related to the assessment of
evidence which fell outside its jurisdiction.
II. RELEVANT DOMESTIC LAW AND INTERNATIONAL SOURCES
A. Relevant domestic law
1. Criminal Code, as amended by Law No. 8204 of 10
April 1997, Law No. 8279 of 15 January 1998, and Law No. 8733 of 24
January 2001
Article 79: Premeditated homicide on account of the
victim's particular position
“A person who commits murder against: (a) a minor
under sixteen years of age; ... shall be sentenced to life
imprisonment or to a term of not less then twenty years of
imprisonment.”
2. Code of Criminal Procedure
Article 478: Release of a prisoner
“The execution judge may decide that a detainee
should be released where the continuation of his detention may have
consequences for his life.”
B. Relevant international material
1. European Prison Rules
The
relevant extracts from the Committee of Ministers' Recommendation No.
R (87) 3 on the European Prison Rules (adopted by the Committee of
Ministers on 12 February 1987 at the 404th meeting of the Ministers'
Deputies), as revised and updated by Recommendation Rec(2006)2
(adopted by the Committee of Ministers on 11 January 2006 at the
952nd meeting of the Ministers' Deputies), read as follows:
“Health care
39. Prison authorities shall safeguard the health of all
prisoners in their care.
Organisation of prison health care
40.1 Medical services in prison shall be organised in
close relation with the general health administration of the
community or nation.
40.2 Health policy in prisons shall be integrated into,
and compatible with, national health policy.
40.3 Prisoners shall have access to the health services
available in the country without discrimination on the grounds of
their legal situation.
40.4 Medical services in prison shall seek to detect and
treat physical or mental illnesses or defects from which prisoners
may suffer.
40.5 All necessary medical, surgical and psychiatric
services including those available in the community shall be provided
to the prisoner for that purpose.
...
Health care provision
46.1 Sick prisoners who require specialist treatment
shall be transferred to specialised institutions or to civil
hospitals, when such treatment is not available in prison.
46.2 Where a prison service has its own hospital
facilities, they shall be adequately staffed and equipped to provide
the prisoners referred to them with appropriate care and treatment.
Mental health
47.1 Specialised prisons or sections under medical
control shall be available for the observation and treatment of
prisoners suffering from mental disorder or abnormality who do not
necessarily fall under the provisions of Rule 12.
47.2 The prison medical service shall provide for the
psychiatric treatment of all prisoners who are in need of such
treatment and pay special attention to suicide prevention. ...”
B. Reports of the European Committee for the Prevention
of Torture and Inhuman or Degrading Treatment or Punishment (CPT)
A delegation of the CPT visited Albania from 28 to 31
March 2006. The relevant parts of the CPT's report of 6 September
2007 read as follows (emphasis added by the CPT):
“11. In the report on the 2005 visit, the CPT
emphasised that, in several of the pre-trial detention facilities
visited (in particular, at Durrës), detained persons were being
held in conditions of detention which could easily be considered as
inhuman or degrading. Indeed, the accumulation of execrable material
conditions, the legal prohibition of any activity inside the cell,
the almost total absence of activities outside the cell, and the
prolonged duration of placements in the facilities concerned was
described by Committee as 'being, in its experience, unique in a
European context'.
It is a matter of grave concern that from the
observations made at Durrës during the March 2006 visit, the
situation has clearly remained virtually unchanged. It must be added
that the situation found at Fier Police Directorate was scarcely more
favourable.
During the high-level consultations with the Albanian
authorities, the delegation's view was also shared by the Prime
Minister who stated that the conditions of detention in pre-trial
detention facilities were 'a shame for Albania'.
Already at this stage, the CPT must also express its
serious concern about the absence of care for a severely ill detainee
who was found in his cell in the pre-trial detention facilities at
Fier Police Directorate. He had been left in a catatonic state on the
floor of his cell for several days, without receiving any medical
attention.
These issues will be addressed in detail in the
following section of the present report, but the seriousness
justifies them already being flagged in this section on
ill-treatment.
...
23. The 2006 visit demonstrated that not a single
of the specific recommendations repeatedly made in this respect by
the CPT in previous visit reports had been implemented in practice,
despite the explicit assurances given to the contrary by the Albanian
authorities in their response to the report on the 2003 visit. In
particular, in neither establishment visited were newly-arrived
detainees subject to medical screening on admission (except in cases
of emergency or upon request). Further, medical
examinations/consultations when they did occur were still
systematically carried out in the presence of police officers. It
should be added that in those few cases when medical files had been
opened, they lacked basic medical data and were usually accessible to
non-medical staff. Such a state of affairs is totally unacceptable.
24. Further, no improvements had been made as
regards the general provision of health care in either establishment
visited, notwithstanding various recommendations made by the CPT in
the reports on the 2003 and 2005 visits. More specifically, no steps
had been taken to ensure the regular presence of qualified nursing
staff (on a full-time basis at Durrës). It is particularly
worrying that the Albanian authorities, in their response of 27 June
2006 to the report on the 2005 visit, totally failed to address the
recommendations made by the Committee on this subject.
25. The health care provided in the pre-trial
detention facilities at Fier appeared to be particularly problematic
and, in a number of cases, even inexistent. In addition, conditions
in the health-care facilities were appalling. The delegation received
many complaints from inmates about delays in having access to the
doctor and the quality of the health care provided; the delegation
observed itself, on the spot, the case of one inmate in need of
urgent medical care who had been left in a state of total neglect.
As already mentioned in paragraph 11, a mentally ill
detainee was found lying in a catatonic state on the floor of an
overcrowded cell, below a leaking sewage pipe, without receiving any
medical attention. He had apparently been in this situation for
several days. A physical examination by the medical member of the
delegation also revealed that his right leg was of intensive red
colour and swollen, painful on palpation. According to fellow
inmates, he had sustained the latter injury a few days earlier when
he had fallen on the floor in the sanitary facilities (to which he
had to be carried by other inmates).
Upon consultation with staff and cellmates, it
transpired that the detainee had been hospitalised, due to his
serious mental disorder, and returned to the establishment two weeks
before the visit. His health condition was said to have been stable
for the first couple of days on his return, but to have drastically
deteriorated subsequently, apparently due to the fact that he had not
received the medication prescribed by the hospital.
When confronted with this case, the doctor claimed that
he had seen the inmate concerned, but was not able to provide any
precise information about his health condition or the treatment
provided.
When asked about the whereabouts of the medical file of
the above-mentioned detainee as well as of other detainees, the
doctor affirmed that such files existed in respect of every inmate,
but claimed that he had no key to the cupboard where the files were
said to be stored. After a considerable delay, a key was produced by
a police officer, and it came to light that there was not a single
personal medical file.
The only medical documentation available was a register
for doctors' visits, the last entry dating back to November 2005. The
doctor's explanation for this state of affairs was that 'he had not
recorded anything, because he had not received any medication to
prescribe ever since'. ...”
A
previous visit by a CPT delegation to Albania took place from 23 May
to 3 June 2005. The delegation inspected, inter alia, Tirana
Prison
Hospital. The relevant parts of the CPT's report of 2 July
2006 read as follows (emphasis added by the CPT):
“61. Material conditions of detention were
appalling in all the pre-trial detention facilities visited. Many
detainees were being held in very cramped conditions (for example, up
to seven persons in a cell of 5 m² at Vlora or up to ten persons
in a cell of 8 m² at Durrës). Cells were only equipped with
foam mattresses and/or blankets. In addition, access to natural light
was very limited and ventilation extremely poor.
The worst conditions were found at Durrës, where
inmates were not even provided with mattresses or bed sheets.
Further, some inmates were being accommodated in two storage rooms,
which were packed with food parcels of the entire inmate population.
Some inmates were found to be in a state of torpidity, and the
delegation was informed that, on occasion, inmates had even fainted,
as a result of extremely high temperatures and a very high level of
humidity. Further, hygienic conditions in most of the cells as well
as in the sanitary facilities were appalling (infested with
cockroaches, etc.). Not surprisingly, many inmates were suffering
from skin diseases and/or breathing problems. It must also be
stressed that some of the inmates met by the delegation had already
been held in this establishment for several years. ...
108. During the follow-up visit to the prison hospital
in Tirana, the delegation mainly focused on the situation of
psychiatric patients. It also reviewed the measures taken by the
Albanian authorities in the light of the recommendations made after
the 2000 visit regarding the prison hospital as a whole. ...
110. Material conditions in the prison hospital
had significantly improved since the 2000 visit. All cells were of a
reasonable size, had good access to natural light and artificial
lighting, and were well equipped (bed, bedside table, table, chair,
radio). However, the sanitary facilities were found to be in a very
poor state of repair and hygiene. The CPT recommends that steps be
taken to remedy these deficiencies.
Further, many complaints were received from patients
about the poor quality and quantity of the food provided. Steps
should be taken to review the arrangements for the provision of food
at the prison hospital.
111. The CPT remains very concerned about the almost
total lack of out-of-cell activities for patients at the
prison hospital.
As regards patients who had been declared criminally
irresponsible, no out-of-cell activities were organised for them, and
outdoor exercise was only provided on an irregular, less than weekly,
basis, and for less than one hour each time. It is all the more
worrying that many of the patients concerned had been staying at the
prison hospital under such conditions for several years.
Further, no outdoor exercise at all, nor any other
out-of-cell activities were offered to any of the other patients.
Thus, except for access to sanitary facilities, patients were usually
confined to their rooms 24 hours per day, the only occupation being
reading and listening to the radio. The hospital also had no library.
Such a state of affairs is totally unacceptable and
constitutes a flagrant failure on the part of the Albanian
authorities to implement a recommendation which had already been made
after the 1997 visit and reiterated after the subsequent visits to
the prison hospital.
The CPT calls upon the Albanian authorities to take
immediate steps to ensure that all patients
whose state of health permits are offered at least one hour of
outdoor exercise per day.
Further, the Committee reiterates its recommendation
that a wider range of activities be offered to long-term patients in
the prison hospital and that special attention be paid to juveniles
serving long-term sentences.
112. The CPT welcomes the recent reinforcement of
health-care staff (two additional doctors and one
psychologist) at the prison hospital. The delegation was informed
that plans were afoot to increase the number of nursing staff. The
CPT would like to receive updated information on this matter.
113. As regards the treatment provided to
patients, the situation remained, on the whole, unchanged. As in
2000, psychiatric treatment was based exclusively on pharmacotherapy.
There were no individualised treatment plans or individual
psychotherapy, occupational therapy or group therapy. In this
respect, the CPT wishes to stress once again that psychiatric
treatment should be based on an individualised approach, which
implies the drawing up of a treatment plan for each patient
indicating the goals of treatment, the therapeutic means used and the
staff member responsible. The treatment plan should also contain the
outcome of a regular review of the patient's mental health condition
and a review of the patient's medication. The treatment should
involve a wide range of rehabilitative and therapeutic activities,
including access to occupational therapy, group therapy, individual
psychotherapy, and sports. In addition, patients should have regular
access to suitably equipped leisure rooms; it is also desirable for
them to be offered education and suitable work (cf. also paragraph
111).
The CPT reiterates its recommendation that the
psychiatric treatment offered to patients at the prison hospital be
reviewed, in the light of the above remarks.
114. As regards contact with the outside world,
it is praiseworthy that patients now have regular access to a
telephone (once per week). As regards visits, the entitlements of
patients were identical to those of inmates held in prisons. In this
connection, reference is made to the remarks and recommendation made
in paragraph 136.
115. The CPT noted that, since the beginning of 2005,
agitated patients were no longer shackled to their bed with hand- and
ankle-cuffs. Further, no excessive recourse to means of restraint
(leather straps; sedative medication) or seclusion was observed.
However, there was no special register on the use of means of
restraint/seclusion. Steps should be taken to remedy this
shortcoming.
116. The confidentiality of medical
examinations/consultations and data was not respected at all at the
prison hospital. In this connection, reference is made to the remarks
and recommendations made in paragraph 127.
117. Persons who had been declared criminally
irresponsible were subject to an involuntary placement order for
an indefinite period. In such cases, [Article 46 of the Criminal
Code] provides that the necessity of that placement be reviewed by
the court ex officio after one year. However, the delegation
was informed that such judicial reviews had never been carried out ex
officio, but only upon request by the person concerned or his
lawyer.
The CPT calls upon the Albanian authorities to take
immediate steps to ensure that the review procedure under [Article 46
of the Criminal Code] is carried out in respect of all persons who
have been declared criminally irresponsible.”
C. Amnesty International Report 2007 on the state of
the world's human rights
The
Amnesty
International
Annual Report 2007 stated, with reference to the state of
human rights in Albanian prisons:
“Conditions of detention
Despite an EU-supported programme of prison reform and
some improvements to detention conditions, these were still generally
very poor and characterized by overcrowding, poor hygiene and
sanitation, and inadequate diet and health care. Contrary to Albanian
law and international standards, minors were still sometimes held
together with adult detainees, and remand and convicted prisoners
shared cells. Mentally ill prisoners were often held in prisons
instead of being sent for medical treatment in specialized
institutions in accordance with court decisions. Detainees held in
remand cells in police stations suffered particularly harsh
conditions, and there were frequent complaints. Conditions were
particularly poor, largely due to overcrowding, in Durrës,
Elbasan and Korça police stations.”
THE LAW
I. ALLEGED VIOLATION OF ARTICLE 3 OF THE CONVENTION
Without
relying on any Article of the Convention, the applicant complained of
the inadequacy of his medical treatment, and with reference to the
CPT reports on Albanian prisons in general, the conditions of his
detention in view of his state of health.
In
his observations of 22 May 2007 the applicant challenged the adequacy
of the conditions in the pre-trial detention cells at Durrës
Police Station from August 2002 to
December 2003.
The
Court considers that despite the fact that the applicant did not
explicitly rely on Article 3 of the Convention, his claims fall to be
examined under that Article. The Government in their submissions were
requested to address that Article. Article 3 reads as follows:
“No one shall be subjected to torture or to
inhuman or degrading treatment or punishment.”
A. Admissibility
The
Government contested the applicant's arguments. They submitted that
the applicant had failed to submit his complaints to the domestic
courts and that this part of the application should therefore be
declared inadmissible for non-exhaustion of domestic remedies.
The
applicant alleged that his repeated complaints to the competent
domestic courts had been dismissed and that he was currently serving
his sentence in the same place as other inmates who were in good
health. He maintained that his complaints were based on a structural
problem of the Albanian penitentiary system, which lacked appropriate
institutions to ensure adequate conditions of detention and the
necessary medical treatment for people with a similar health
condition. Consequently, his appeals would have been ineffective in
practice even if they were successful at domestic level.
The Court observes at the outset that the applicant's
complaint about the conditions of his pre-trial detention (from
August 2002 to December 2003) was lodged only on 22 May 2007, that is
to say after the six-month time-limit provided
for by the Convention. In these circumstances this complaint
must be rejected as having been lodged outside the six-month
time-limit pursuant to Article 35 §§ 1 and 4 of the
Convention.
As
to the remainder of the applicant's complaints under this provision,
namely the inadequacy of the conditions in prison and the medical
treatment he received, the Court observes that it appears from
the file that after his conviction the applicant was placed in cells
with other inmates. When his state of health worsened he was
transferred to Tirana Prison Hospital, where he received in-patient
treatment. The applicant's lawyer unsuccessfully requested the
domestic courts to release the applicant from prison and/or to order
his detention in a specialised medical facility, given the harsh
conditions of detention in a high-security prison. The applicant
cannot therefore be reproached for failing to exhaust domestic
remedies.
The
Court would further observe that the Government have failed to prove
that the remedies referred to would have been adequate and effective
to redress the applicant's complaints. In particular, they have not
alluded to any decisions of the domestic courts which indicate that
individuals in the applicant's situation have successfully obtained
their transfer from prison to an institution specialising in the
treatment of the mentally ill. Consequently, it dismisses their
objection.
Having
regard to the above considerations, the Court considers that the
applicant's complaints relating to the conditions of his detention
and the medical treatment he received while in prison are not
manifestly ill-founded within the meaning of Article 35 § 3 of
the Convention. It further finds that they are not inadmissible on
any other grounds. They must therefore be declared admissible.
B. Merits
1. The parties' submissions
The
applicant argued that he was serving his sentence in a prison where
the detention conditions failed to meet those required for persons in
his state of health. Moreover, he argued that the authorities'
negligence in failing to treat him with the drugs prescribed by
specialist doctors had breached his rights under the Convention.
The
Government disputed that – apart from the applicant's
subjective feelings – the treatment complained of had attained
the minimum level of severity required to fall within the scope of
Article 3. They first of all maintained that in the light of the
medical evidence produced by them before the Court, there could be no
doubt that the relevant authorities had carefully and frequently
monitored the applicant's state of health and provided him with
medical assistance appropriate to his condition.
The
Government submitted that the conditions of detention in Albanian
prisons should be considered in the same context as those in other
member States which were reforming their legal systems. Indeed, since
the time of the CPT's first visit to Albania in 1990, positive
progress had been achieved and conditions of detention had improved.
Moreover, they submitted that the conditions in which prisoners such
as the applicant were detained should be assessed with reference to
the economic situation of the State and the standard of living in the
country.
Lastly,
they maintained in particular that the conditions of the applicant's
detention were appropriate to his state of health and equal to the
standards applied to other prisoners, given that in 2002 the domestic
courts had found him criminally responsible for the offences
committed. The Government submitted medical reports on the
applicant's health, which referred to his medical treatment during
his stay in prison and in the prison hospital. These reports
reflected the fact that the applicant had been treated with medicines
similar to those prescribed by his ordinary doctor and that his
admission to a specialist institution within the penitentiary system
depended on the construction of such an institution in the future.
2. The Court's assessment
(a) General principles
The
Court reiterates at the outset that Article 3 of the Convention
enshrines one of the most fundamental values of democratic society.
It prohibits in absolute terms torture or inhuman or degrading
treatment or punishment, irrespective of the circumstances and the
victim's behaviour (see, as recent authorities, Van der Ven
v. the Netherlands, no. 50901/99, § 46, ECHR
2003-II, and Poltoratskiy v. Ukraine, no. 38812/97, §
130, ECHR 2003-V).
The
Court reiterates that, according to its case-law, ill-treatment must
attain a minimum level of severity if it is to fall within the scope
of Article 3 of the Convention. The assessment of this minimum
level of severity is, in the nature of things, relative; it depends
on all the circumstances of the case, such as the duration of the
treatment, its physical and mental effects and, in some cases, the
sex, age and state of health of the victim (see Kudła v.
Poland [GC], no.
30210/96, § 91, ECHR 2000-XI; Mouisel v.
France, no. 67263/01, § 37, ECHR 2002-IX; and Papon
v. France (no. 1) (dec.), no.
64666/01, ECHR 2001-VI).
Treatment
has been held by the Court to be “inhuman” because, inter
alia, it was premeditated, was applied for hours at a stretch and
caused either actual bodily injury or intense physical and mental
suffering. It has deemed treatment to be “degrading”
because it was such as to arouse in the victims feelings of fear,
anguish and inferiority capable of humiliating and debasing them (see
Kudła, cited above, § 92). The question whether the
purpose of the treatment was to humiliate or debase the victim is a
further factor to be taken into account, but the absence of any such
purpose cannot conclusively rule out a violation of Article 3 (see
Peers v. Greece, no. 28524/95, § 74, ECHR 2001-III;
Kalashnikov v. Russia, no. 47095/99, § 101, ECHR
2002-VI and Ramirez Sanchez v. France [GC], no. 59450/00,
§ 119, ECHR 2006 ...).
The suffering and humiliation involved must go beyond
that inevitable element of suffering or humiliation connected with a
given form of legitimate treatment or punishment. Measures depriving
a person of his liberty may often involve such an element. Yet it
cannot be said that detention in itself raises an issue under Article
3. Nevertheless, under this provision the State must ensure that a
person is detained in conditions which are compatible with respect
for his human dignity, that the manner and method of the execution of
the measure do not subject him to distress or hardship of an
intensity exceeding the unavoidable level of suffering inherent in
detention and that, given the practical demands of imprisonment, his
health and well-being are adequately secured. When assessing
conditions of detention, account has to be taken of the cumulative
effects of those conditions and the duration of the detention (see
Dougoz v. Greece, no. 40907/98, § 46, ECHR 2001-II,
and Kalashnikov, cited above, § 102). In particular, the
Court must have regard to the state of health of the detained person
(see Assenov and Others v. Bulgaria, judgment of 28 October
1998, Reports of Judgments and Decisions 1998 VIII, p.
3296, § 135; Kudła, cited above, §
94 and Ramirez Sanchez cited above, § 119).
An
important factor, along with the material conditions, is the
detention regime. In assessing whether a restrictive regime may
amount to treatment contrary to Article 3 in a given case, regard
must be had to the particular conditions, the stringency of the
regime, its duration, the objective pursued and its effects on the
person concerned (see Messina v. Italy (dec.), no. 25498/94,
ECHR 1999-V; Van der Ven, cited above, § 51;
Iorgov v. Bulgaria, no. 40653/98, §§ 82-84 and
86, 11 March 2004; and G.B. v. Bulgaria, no.
42346/98, §§ 83-85 and 87, 11 March 2004).
Thus,
the Court has been called upon to examine, inter alia, whether
it is compatible with Article 3 for the following categories of
persons to be detained in conditions which are not suitable in the
light of their physica or mental condition: persons suffering from a
mental disorder (see Kudła, cited above, and
Keenan v. the United Kingdom, no. 27229/95, ECHR 2001-III) or
serious illness (see Mouisel, cited above, and Matencio
v. France, no. 58749/00, 15 January 2004; and Sakkopoulos
v. Greece, no. 61828/00, 15 January 2004), the
disabled (see Price v. the United Kingdom, no. 33394/96,
ECHR 2001-VII), the elderly (see Papon (dec.), cited above) or
drug addicts suffering withdrawal symptoms (see McGlinchey and
Others v. the United Kingdom, no. 50390/99, ECHR 2003-V).
Although
Article 3 of the Convention cannot be construed as laying down a
general obligation to release detainees on health grounds, it
nonetheless imposes an obligation on the State to protect the
physical well-being of persons deprived of their liberty, for example
by providing them with the requisite medical assistance (see Hurtado
v. Switzerland, judgment of 28 January 1994, Series A no. 280-A,
Opinion of the Commission, pp. 15-16, § 79). The lack of
appropriate medical care may amount to treatment contrary to Article
3 (see İlhan v. Turkey [GC], no. 22277/93, § 87,
ECHR 2000-VII; Naumenko v. Ukraine, no. 42023/98, § 112,
10 February 2004; and Farbtuhs v. Latvia, no. 4672/02,
§ 51, 2 December 2004). In particular, the assessment of
whether the particular conditions of detention are incompatible with
the standards of Article 3 has, in the case of mentally ill persons,
to take into consideration their vulnerability and their inability,
in some cases, to complain coherently or at all about how they are
being affected by any particular treatment (see, for example,
Herczegfalvy v. Austria, judgment of 24 September 1992,
Series A no. 244, pp. 25-26, § 82, and Aerts
v. Belgium, judgment of 30 July 1998, Reports 1998-V,
p. 1966, § 66).
There
are 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 an applicant (see Mouisel, cited above, §§
40-42, and Melnik v. Ukraine, no. 72286/01, § 94,
28 March 2006).
(b) Application of these principles to the
present case
The
Court considers that the applicant's complaints under this provision,
namely the inadequacy of the conditions of his detention and the
inappropriate medical treatment he received while in prison, concern
the same Convention issues. Thus, it will examine the merits of both
complaints jointly.
The
Court observes that the parties agreed that the applicant was
suffering from a chronic mental disorder, which involved psychotic
episodes and feelings of paranoia. The history of his detention in
the pre-trial detention facility of Durrës Police Station, and
then in Peqin High Security Prison from 2002 onwards, indicates that
his condition had deteriorated by the time he received in-patient
treatment in Tirana Prison Hospital. In particular, during his five
years of detention the applicant received in-patient medical
treatment in Tirana Prison Hospital from 26 May 2004 to 2 June
2004 and from 1 December 2004 to 26 January 2005.
According
to the authorities, given the impossibility of providing the
applicant with the necessary medical treatment in view of the lack of
relevant facilities and medicines (see paragraph 34 above), he
was treated with drugs similar to those prescribed by his doctor and,
until the establishment of a specialist criminal psychiatric
institution, he was placed in ventilated and well-lit cells in a
high-security prison which he shared with other inmates who were in
good health. He received in-patient treatment in Tirana Prison
Hospital only when his health worsened.
The
applicant's father and lawyer lodged several complaints with the
competent authorities against the prison hospital administration and
the medical unit, alleging that they had been negligent in failing to
prescribe adequate medical treatment and that his health had
deteriorated because of the lack of medical treatment and
examinations. However, all the complaints were disregarded. Indeed,
the Court observes that the last assessment of the applicant's health
dates back to 2002. The applicant's medical notes show that he has
repeatedly been prescribed the same treatment and that no detailed
description has been given of the development of his illness.
The
Court considers that the fact that the applicant was found criminally
responsible for an offence of homicide and sentenced to life
imprisonment is not decisive for the question whether the authorities
fulfilled their obligation under Article 3 to protect him from
treatment or punishment contrary to this provision. Indeed, the
feeling of inferiority and powerlessness which is typical of persons
who suffer from a mental disorder calls for increased vigilance in
reviewing whether the Convention has been complied with. While it is
for the authorities to decide, on the basis of the recognised rules
of medical science, on the therapeutic methods to be used to preserve
the physical and mental health of patients who are incapable of
deciding for themselves, and for whom they are therefore responsible,
such patients nevertheless remain under the protection of Article 3,
whose requirements permit of no derogation.
The
Court accepts that the very nature of the applicant's psychological
condition made him more vulnerable than the average detainee and that
his detention may have exacerbated to a certain extent his feelings
of distress, anguish and fear. In this connection, the Court
considers that the fact that the Government admitted that the
applicant was treated like the other inmates, notwithstanding his
particular state of health, shows the failure of their commitment to
improving the conditions of detention in compliance with the
recommendations of the Council of Europe (see paragraph 18 above). In
recent judgments the Court has drawn the authorities' attention to
the importance of this recommendation, notwithstanding its non
binding nature for the member States (see Rivière v.
France, no. 33834/03, § 72, 11 July 2006, and
Naumenko v. Ukraine, cited above, § 94).
Moreover,
the Court observes that the Government have failed either to submit
detailed information about the material conditions of the applicant's
detention or to show that notwithstanding his stay in a high-security
prison, those conditions were appropriate for a person with his
history of mental disorder. Furthermore, the Court considers that the
applicant's regular visits to the prison's hospital cannot be viewed
as a solution since the applicant is serving a sentence of life
imprisonment.
The
Court does not underestimate the significance of the financial
difficulties referred to by the Government (see paragraph 33 above).
However, it observes that many of the shortcomings outlined above
could have been remedied even in the absence of considerable
financial means. In any event, a lack of resources cannot in
principle justify detention conditions which are so poor as to reach
the threshold of severity for Article 3 to apply (see
Poltoratskiy, § 148 cited above, and Iovchev
v. Bulgaria, no. 41211/98, § 136, 2 February
2006).
Taking
into account the cumulative effects of the entirely inappropriate
conditions of detention to which the applicant was subjected, which
clearly had a detrimental effect on his health and well-being (see
Kalashnikov, cited above, § 98), the CPT's findings
in its latest reports concerning the conditions of detention in
Albanian prisons, particularly with regard to mentally ill prisoners
(see paragraphs 19-20 above), and its own case-law in this area (see
paragraph 41 above), the Court considers that the nature, duration
and severity of the ill-treatment to which the applicant was
subjected and the cumulative negative effects on his health are
sufficient to be qualified as inhuman and degrading (see Egmez v.
Cyprus, no. 30873/96, § 77, ECHR 2000-XII; Labzov v.
Russia, no. 62208/00, § 45, 16 June 2005; and
Mayzit v. Russia, no. 63378/00, § 42, 20 January
2005).
There
has therefore been a violation of Article 3 of the Convention.
II. ALLEGED VIOLATION OF ARTICLE 6 § 1 OF THE
CONVENTION
A. The parties' submissions
Relying
on Article 6 § 1 of the Convention, the applicant complained of
the unfairness of the proceedings concerning his request for his
release from prison or confinement in a specialist institution
appropriate to his state of health. In particular, he claimed that
the domestic courts had failed to give him the possibility of being
examined by an independent and impartial psychologist in order to
establish the nature of his mental disorder, thus putting him at a
disadvantage vis-à–vis the prosecutor's office
and upsetting the principle of equality of arms.
The
Government contested that argument. They submitted that the applicant
had had the opportunity to prove that the conditions of his detention
threatened his life. In their submission, the applicant's complaint
concerned the outcome of the proceedings at issue and should thus be
dismissed by the Court as being of a fourth-instance nature.
B. The Court's assessment
The
Court reiterates the settled case-law of the Convention institutions
to the effect that proceedings concerning the execution of a sentence
imposed by a competent court, including proceedings on the granting
of conditional release, do not fall within the scope of Article 6 §
1 of the Convention. They concern neither the determination of “a
criminal charge” nor the determination of “civil rights
and obligations” within the meaning of this provision (see, for
example, Aldrian v. Austria, no. 16266/90, Commission
decision of 7 May 1990, Decisions and Reports (DR) 65, p. 337; A. B.
v. Switzerland, no. 20872/92, Commission decision of
22 February 1995, DR 80, pp. 66 and 72; Grava v. Italy
(dec.), no. 43522/98, 5 December 2002; Husain v. Italy
(dec.), no. 18913/03, 24 February 2005; and Sannino v. Italy
(dec.), no. 30961/03, 24 February 2005).
It
observes that the applicant's conviction and sentence were upheld by
the domestic courts at three levels of jurisdiction. The applicant
has been serving the prison sentence imposed on him ever since. The
Court is not persuaded that the decision taken by the domestic courts
regarding the applicant's request to serve his sentence in a
specialist institution appropriate to his state of health or to be
released involved the determination of a “criminal charge”
or of “civil rights and obligations” within the meaning
of Article 6 § 1. The applicant's request in practice related to
the manner of implementing his sentence.
The
Court would further observe that the Convention does not guarantee,
as such, a right to conditional release or to serve a prison sentence
in accordance with a particular sentencing regime (see Aldrian,
Commission decision cited above, and Savic v. Slovakia,
no. 28409/95, Commission decision of 3 December 1997).
It
follows that the complaint must be rejected pursuant to Article 35 §§
3 and 4 of the Convention.
III. APPLICATION OF ARTICLES 46 AND 41 OF THE CONVENTION
Article
46 of the Convention provides:
“1. The High Contracting Parties
undertake to abide by the final judgment of the Court in any case to
which they are parties.
2. The final judgment of the Court shall be
transmitted to the Committee of Ministers, which shall supervise its
execution.”
Article
41 of the Convention provides as follows:
“If the Court finds that there has been a
violation of the Convention or the Protocols thereto, and if the
internal law of the High Contracting Party concerned allows only
partial reparation to be made, the Court shall, if necessary, afford
just satisfaction to the injured party.”
The
applicant pointed out that he had been detained in poor conditions
from 2002 onwards, during which time he had not received adequate
medical treatment. He requested to be placed in a specialised medical
institution appropriate to his state of health, and also sought
payment of 500,000 euros (EUR) in respect of the pecuniary and
non-pecuniary damage sustained. In the event of the authorities'
failure to comply with the above-mentioned request, he claimed EUR
1,000,000 in respect of pecuniary and non-pecuniary damage.
The
Government confined themselves to alleging that there was no evidence
supporting the applicant's claims.
The
Court reiterates that, in accordance with Article 46 of the
Convention, a finding of a violation imposes on the respondent State
a legal obligation not just to pay those concerned the sums awarded
by way of just satisfaction under Article 41, but also to select,
subject to supervision by the Committee of Ministers, the general
and/or, if appropriate, individual measures to be adopted in their
domestic legal order to put an end to the violation found by the
Court and to redress so far as possible the effects (see Broniowski
v. Poland [GC], no. 31443/96, § 192, ECHR 2004-V).
The
Court has taken due note of the Government's commitment to the
improvement of prison conditions. In this connection the Government
should take an approach to the matter in keeping with the spirit of
the protection system set up by the Convention. However, the Court
considers that in view of its findings in the present case, the
necessary measures should be taken as a matter of urgency in order to
secure appropriate conditions of detention and adequate medical
treatment, in particular, for prisoners, like the applicant, who need
special care owing to their state of health.
A. Damage
As to the pecuniary damage allegedly caused, the Court
reiterates that there must be a clear causal connection between the
damage claimed by the applicant and the violation of the Convention
(see Barberà, Messegué and Jabardo v. Spain,
judgment of 13 June 1994 (former Article 50), Series A no.
285-C, §§ 16-20; see also Berktay v. Turkey, no.
22493/93, § 215, 1 March 2001; and Khudobin v.
Russia, no. 59696/00, § 142, ECHR 2006 ...
(extracts)).
The
Court, having regard to its findings concerning the applicant's
complaint under Article 3 of the Convention, considers that no causal
link has been established between the damage alleged and the
violation it has found (see Kalashnikov, cited above, §
139). It therefore dismisses the applicant's claim for pecuniary
damage.
As
regards non-pecuniary damage, the Court observes that it has found
that the applicant's rights under Article 3 of the Convention have
been violated. It considers that the applicant suffered damage of a
non-pecuniary nature, as a result of his detention in inhuman and
degrading conditions, inappropriate to his state of health (see
paragraphs 51-52 above), which is not sufficiently redressed by the
finding of a violation of his rights under the Convention.
For
the foregoing reasons, having regard to the specific circumstances of
the present case and its case-law in similar cases (see, mutatis
mutandis, Peers, cited above, § 88; Khokhlich v.
Ukraine, no. 41707/98, § 228, 29 April
2003; and Melnik, cited above, § 121) and deciding
on an equitable basis, the Court awards EUR 5,000 under this head,
plus any tax that may be chargeable on that amount.
B. Costs and expenses
The applicant claimed no costs and expenses, either
for the Convention proceedings or for the proceedings before the
domestic courts, other than those received in legal aid.
C. Default interest
The
Court considers it appropriate that the default interest should be
based on the marginal lending rate of the European Central Bank, to
which should be added three percentage points.
FOR THESE REASONS, THE COURT UNANIMOUSLY
Declares the complaint concerning the
inappropriateness of the conditions of the applicant's detention in
prison and of the medical treatment he received, having regard to his
state of health, admissible and the remainder of the application
inadmissible;
Holds that there has been a violation of Article
3 of the Convention;
Holds
(a) that
the respondent State is to pay the applicant, within three months
from the date on which the judgment becomes final in accordance with
Article 44 § 2 of the Convention, EUR 5,000 (five
thousand euros) in respect of non-pecuniary damage, to be converted
into the currency of the respondent State at the rate applicable on
the date of the settlement, plus any tax that may be chargeable;
(b) that
from the expiry of the above-mentioned three months until settlement
simple interest shall be payable on the above amount at a rate equal
to the marginal lending rate of the European Central Bank during the
default period plus three percentage points;
Dismisses the remainder of the applicant's claim
for just satisfaction.
Done in English, and notified in writing on 18 December 2007,
pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.
T.L. Early Nicolas
Bratza Registrar President
