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STOYAN MITEV v. BULGARIA - 60922/00 [2010] ECHR 21 (7 January 2010)
URL: http://www.bailii.org/eu/cases/ECHR/2010/21.html
Cite as:
[2010] ECHR 21
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FIFTH
SECTION
CASE OF STOYAN MITEV v. BULGARIA
(Application
no. 60922/00)
JUDGMENT
STRASBOURG
7 January
2010
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 Stoyan Mitev v.
Bulgaria,
The
European Court of Human Rights (Fifth Section), sitting as a Chamber
composed of:
Peer Lorenzen, President,
Karel
Jungwiert,
Rait Maruste,
Mark
Villiger,
Isabelle Berro-Lefèvre,
Mirjana
Lazarova Trajkovska, judges,
Pavlina Panova, ad hoc
judge,
and Claudia Westerdiek,
Section Registrar,
Having
deliberated in private on 1 December 2009,
Delivers
the following judgment, which was adopted on that date:
PROCEDURE
The
case originated in an application (no. 60922/00) against the Republic
of Bulgaria lodged with the Court under Article 34 of the Convention
for the Protection of Human Rights and Fundamental Freedoms (“the
Convention”) by a Bulgarian national, Mr Stoyan Stoyanov Mitev
(“the applicant”), on 27 July 2000. The applicant was
born in 1934, lived in Sokolovo and passed away in 2001. By a letter
of 6 April 2005 his son, Mr Asen Stoyanov Mitev, informed the
Court that he wished to continue the application on behalf of his
father.
The
applicant was represented by Ms Y.
Vandova, a lawyer practising in Sofia.
The
Bulgarian Government (“the Government”) were represented
by their Agent, Ms M. Kotzeva, of the Ministry of Justice.
The
applicant alleged, in particular, that his continued detention in
spite of his constantly deteriorating medical condition amounted to
inhuman and degrading treatment in contravention of Article 3 of the
Convention.
On
1 September 2005 the Court declared the application partly
inadmissible and decided to communicate the complaint under Article 3
of the Convention to the Government. It also decided to examine the
merits of the application at the same time as its admissibility
(Article 29 § 3).
Judge
Kalaydjieva, the judge elected in respect of Bulgaria, withdrew from
sitting in the case (Rule 28 of the Rules of Court). On 30 January
2009, the Government, pursuant to Rule 29 § 1 (a), informed the
Court that they had appointed in her stead Ms Pavlina Panova as an ad
hoc judge (Article 27 § 2 of the Convention and Rule 29 §
1 of the Rules of the Court).
THE FACTS
I. THE CIRCUMSTANCES OF THE CASE
A. The criminal proceedings against the applicant
On
17 August 1997 the applicant was arrested after neighbours found him
beating another elderly individual, who later died from his injuries.
In
a judgment of 10 December 1998 the Burgas Regional Court found the
applicant guilty of premeditated murder and sentenced him to
seventeen years’ imprisonment, to be initially served in a high
security prison. The applicant appealed against the judgment.
In
a judgment of 15 November 1999 the Burgas Court of Appeal upheld the
lower court’s judgment. The applicant lodged a cassation
appeal.
Two
hearings before the Supreme Court of Cassation were adjourned because
of the applicant’s failure to attend them as a result of his
deteriorating medical condition.
On
21 July 2000 the Supreme Court of Cassation ordered the applicant’s
release on bail. The guarantee was deposited on 24 July 2000 and the
applicant was released the next day.
Subsequently,
several more hearings were scheduled, but none were conducted due to
the deteriorating medical condition of the applicant.
On
14 December 2001 the applicant passed away.
In
view of the applicant’s death, by a decision of 19 March 2002
the Supreme Court of Cassation quashed the judgment of the Burgas
Court of Appeal and discontinued the criminal proceedings against
him.
B. The applicant’s medical condition
1. Prior to the criminal proceedings
The
applicant was a pensioner who retired on medical grounds. After a
domestic accident in 1993 he became disabled, walked with a stick and
limped because his left leg had become shorter than his right by six
centimetres. The applicant was apparently a heavy smoker.
2. Injuries allegedly sustained during the arrest
At
the time of his arrest on 17 August 1997 the applicant allegedly
sustained an injury to his testicles. On 20 February 1998 his lawyer
requested the courts to order that his client be provided with
hospital treatment for the aforementioned injury. It is unclear
whether the applicant received any such treatment. At the time, he
was held at the detention facility of the Burgas Investigation
Service.
3. While in detention
(a) Angiopathy and inguinal hernia
On
21 November 1997 the applicant was transferred to Stara Zagora Prison
where he was examined by a doctor. He complained of poor blood
circulation in both legs and was found to have angiopathy.
It does not appear that he received any specific treatment for this
condition. The applicant was also diagnosed with left-sided inguinal
hernia
and was prohibited physically intensive work.
On
11 February 1998 the applicant was examined by the prison doctor, who
found that the applicant’s inguinal hernia was progressing and
ordered that it be operated on.
On
4 March 1998 the applicant was transferred to Sofia Prison Hospital
where on 10 March 1998 the operation was performed. The applicant
remained hospitalised for at least another ten days, when his
stitches were removed. He was discharged on an unspecified day,
advised not to lift anything heavy and was given thirty days’
home leave.
On
an unspecified date before May 1998 the applicant returned to Stara
Zagora Prison.
(b) Urinary infection
Some
time prior to July 1998 the applicant developed an infection or
complications which affected his urinary tract and he had difficulty
urinating. It is unclear whether he received any treatment for this
condition and when it cleared up.
(c) Stroke
(i) Stara Zagora
At
around 10:30 a.m. on 28 January 2000 the applicant, while physically
exerting himself for an unspecified reason, developed a very severe
headache, his mouth became crooked, he started having difficulty
speaking and his right limbs became numb. Upon examination, he was
found to have very high blood pressure. The applicant was taken to
the emergency room of Stara Zagora hospital where various tests were
performed, including a CAT scan (computed tomography) of the brain.
As a result, it was discovered that he had suffered a stroke and was
diagnosed with the following:
“Brain atherosclerosis. Arterial hypertension -
3rd stage. Transient disturbance of the brain’s blood
circulation in the left carothic system (stroke). Right-sided
hemiparesis.”
The
applicant returned to the medical ward in Stara Zagora Prison where
he was placed under medical supervision and ordered to remain in bed.
He was prescribed daily doses of Agapurin, Vasopren and Cinnarizine.
As
the applicant’s medical condition had stabilised, on 9 February
2000 the prison warden proposed that the applicant be transferred to
Sofia Prison Hospital for further treatment and rehabilitation.
On
18 February 2000 the applicant was transferred to the neurological
ward of Sofia Prison Hospital.
(ii) Sofia Prison Hospital
At
Sofia Prison Hospital the applicant was prescribed a medication
regime aimed at improving the blood circulation to his brain. On
23 February 2000 he also started physiotherapy.
The
applicant’s medical records from his stay at this facility
indicate that his medical condition was regularly monitored, but
sometimes not every single day. He also appears to have had regular
contact with and access to doctors or medical personnel, who
addressed, in so far as possible, the complaints or complications he
had.
On
1 March 2000 a medical commission examined the applicant and
concluded that it was not necessary to move him to an outside civil
medical facility, as he was showing signs of improvement and the
required treatment could be provided adequately at Sofia Prison
Hospital.
The
applicant’s medical record indicates that on 20 March 2000 he
said he had fainted while being led out to see a visitor.
It
appears that the applicant’s medical condition gradually began
to deteriorate. Towards the end of April or the beginning of May 2000
it worsened considerably.
On
4 May 2000 another CAT scan of the applicant’s brain was
performed, which found evidence of a five millimetre encephalomacic
lesion in the internal brain cavity.
A
medical report by the head of the neurological ward of Sofia Prison
Hospital indicated that the applicant’s diagnosis was as
follows:
“Generalised and brain atherosclerosis; ischemic
(thromboembolic) brain stroke; right-sided hemiparesis; partial
aphasia; arterial hypothermia – 3rd stage”.
It
also specified that as a result of the lack of specialised
rehabilitation and physiotherapy the applicant’s ability to
move would continue to deteriorate, as had his speech as a result of
the lack of a logopaedic specialist. The doctor concluded the
following:
“the patient is unsuitable to remain in [prison]
conditions of high or standard level of security. [The applicant]
requires constant monitoring of his arterial pressure, neurological
status and to be given therapy...”.
On
9 May 2000 a medical commission found the applicant’s blood
pressure too unstable, and that this precluded his participation in
the hearing of that day. In addition, it reasoned that if the
applicant’s medical condition did not improve, due to the
heightened risk of a second stroke it would be necessary to assess
whether to propose that his detention be replaced with another
measure to secure his participation in the court proceedings.
On
15 May 2000 a medical commission of three doctors from the Hospital
of the Ministry of Internal Affairs prepared a report on the
applicant’s medical condition. They found that in spite of his
initial improvement by following the prescribed treatment, the
applicant’s condition was deteriorating. They proposed that the
applicant be released from detention for an initial period of three
months in order to receive adequate treatment for his condition in a
specialised civil medical facility. The report was sent to the warden
of Stara Zagora Prison.
On
18 May 2000 the warden of Stara Zagora Prison proposed to the Burgas
Regional Court that the applicant’s detention be replaced with
another measure to secure his participation in the court proceedings.
He based his proposal on the findings of the medical commission of 15
May 2000 and the need for the applicant to receive treatment in a
specialised rehabilitation centre.
On
an unspecified date, the Burgas Regional Court apparently refused to
replace the applicant’s detention with another measure to
secure his participation in the court proceedings. The applicant
appealed, but on 2 June 2000 the Supreme Court of Cassation
upheld the lower court’s decision. The latter court based its
decision on the contradictions it had found in the medical reports
prepared since March 2000 regarding the applicant’s medical
condition, his ability to move, the course of the treatment required
and the place most suitable to obtain it. The court concluded the
following:
“it cannot be unequivocally concluded that the
applicant’s [medical] condition had deteriorated to such an
extent as to exclude the possibility that he might be moved or
transported and, accordingly, that [the applicant] might abscond or
reoffend”.
On
20 June 2000, in spite of the medical restriction, the applicant was
taken to court to attend a hearing without an escort or a wheelchair.
When he returned at 11.45 a.m. he had very high blood pressure. He
was given medication and by 4.30 p.m. his blood pressure had been
lowered to a safer level.
On
1 July 2000 an interview with the applicant appeared in the national
newspaper Sega which detailed his situation in Sofia Prison
Hospital. In it the applicant expressed his desire to be released
from prison on medical grounds and his fears that this would not
happen and that he would die in detention before his case was
examined by the courts.
Acting
on a new petition for release, on 21 July 2000 the Supreme Court of
Cassation ordered the applicant’s release on bail. It based its
decision on the proposal of the warden of Stara Zagora Prison of 18
May 2000 and the findings of the medical commission of 15 May 2000.
The court noted the inability of the applicant to move on his own and
thus to abscond or reoffend and also the need for him to receive
treatment as an outpatient in a medical facility, which ruled out the
imposition of house arrest as an alternative to detention.
4. Following the applicant’s release on bail
The
applicant was treated at various medical establishments following his
release on bail, but with no viable improvement. For example, from 15
to 20 September 2000 he was a patient at the Neurological Clinic of
the Military Medical Academy but was discharged
“due to [his] financial constraints [and] with no
improvement in the condition”.
A
report from the same facility of 8 November 2000 found, inter
alia, that the applicant had severely damaged psychological and
intellectual capacity due to the numerous strokes he had suffered as
a result of the ageing of his arteries and his arterial hypertension.
Given the damage caused to his brain he could no longer be considered
sane and the likelihood that his condition would improve was minimal.
On
14 December 2001 the applicant passed away, the cause being “sudden
cardiac arrest”.
II. RELEVANT DOMESTIC LAW
Provision of medical services to persons in detention
Section
10 of the Execution of Sentences Act, as in force at the relevant
time, provided that prisons might also accommodate persons who have
been placed in detention.
In
addition, section 20c of the Act, as in force at the relevant time,
provided that such persons received free medical services at State
and municipal medical facilities, as well as at those operated by the
Ministry of Internal Affairs.
Finally,
section 22 of the Act, as in force at the relevant time, provided
that if medical establishments attached to prisons were not adequate
for the provision of a required treatment, then the detained person
was to be sent to a civilian medical facility for that treatment.
THE LAW
I. PRELIMINARY ISSUE
The
Court observes that the applicant passed away in 2001 and that his
son, Mr Asen Stoyanov Mitev, informed the Court in a letter of 6
April 2005 that he wished to continue the application on behalf of
his father.
In
view of the above, the Court holds that the applicant’s son has
standing to continue the present proceedings in the applicant’s
stead.
II. ALLEGED VIOLATION OF ARTICLE 3 OF THE CONVENTION
The
applicant complained that his continued detention, in spite of his
deteriorating medical condition, amounted to inhuman and degrading
treatment in contravention of Article 3 of the Convention. He
referred, in particular, to his advanced age, prior disability and
difficulty in walking, the herniotomy performed on 10 March 1998, the
stroke suffered on 28 January 2000 and the fear and anguish he felt
that he would die in detention as a result of the allegedly
inadequate medical capacity of the facilities where he had been
detained.
Article
3 of the Convention provides as follows:
“No one shall be subjected to torture or to
inhuman or degrading treatment or punishment.”
A. The parties’ submissions
1. The Government
The
Government stated that the applicant had been detained in conditions
which were satisfactory and were not in any way different from those
in which other detainees at the same facilities had been held.
In
particular, they noted that the applicant had been examined on
arrival at Stara Zagora Prison on 21 November 1997 and had been found
to be suffering from a left-sided inguinal hernia. Subsequently he
had been transferred to Sofia Prison Hospital, where he underwent an
operation on 10 March 1998, made a full recovery and was given
thirty days’ home leave to recuperate. Likewise, in respect of
the stroke suffered by the applicant on 28 January 2000, the
Government stated that he had been immediately placed under medical
supervision in the prison’s infirmary and had then been taken
to the emergency room of Stara Zagora hospital where various tests
had been performed, including a CAT scan of his brain. After his
condition had stabilised, the applicant had been transferred to Sofia
Prison Hospital to continue treatment and to start physiotherapy.
Accordingly, in respect of the level of care provided, the Government
considered that during the stated period the applicant’s
medical condition had been closely monitored, he had been provided
with all the required medicines, had undergone all the necessary
tests and examinations by specialists and had been adequately cared
for by the medical staff at the various facilities.
In
addition, the medical commission that examined the applicant on
1 March 2000 concluded that it was not necessary to move him to
an outside civil medical facility as he was showing signs of
improvement and the required treatment could adequately be provided
at Sofia Prison Hospital. Only subsequently, when the applicant’s
condition deteriorated, did another medical commission on 9 May 2000
reason that it might be necessary to reassess the need for his
detention. Such a proposal was made on the 15th of the month by a
medical commission from the Hospital of the Ministry of Internal
Affairs and on the 18th of the month by the warden of Stara Zagora
Prison. Based on these proposals, on 21 July 2000 the Supreme Court
of Cassation ordered the applicant’s release on bail.
In
view of the above, the Government argued that by releasing the
applicant on bail the domestic courts had fully complied with and had
taken into account the conclusions of the medical experts. Moreover,
the facts of the present case were not as severe as in Kudła
v. Poland ([GC], no. 30210/96, § 46-50, ECHR 2000 XI),
where the Court found there to have been no violation in spite of a
delay of several months by the national courts to take into account
the conclusions of medical experts that the applicant in that case
was a danger to himself and might attempt suicide.
The
Government notes that the applicant’s unstable health and old
age might have placed him in a more precarious situation compared to
other detainees and might have increased his feeling of distress or
anguish, but they noted the fact that the applicant had by that time
already been charged with and convicted of premeditated murder at two
levels of jurisdiction. In spite of this, the actions of the medical
experts led to the applicant’s release from detention.
Accordingly, the Government considered that the applicant’s
detention could not be construed to have constituted inhuman or
degrading treatment in contravention of Article 3 of the Convention.
2. The applicant
The
applicant reiterated the substance of his complaint and considered
that it was irrelevant whether he had been held in conditions similar
to those of other detainees in the same facilities, because the
conditions they all shared were substandard. This was claimed to have
been supported by the findings of the CPT in its reports over the
given period and by statements of politicians in the national press.
In
addition, the applicant argued that his age, difficulty in walking
and precarious health should have made his detention unjustified and
unnecessary from the outset. Instead he had been detained for a
particularly lengthy period of time.
As
to the information provided by the Government, the applicant
considered that they had failed to respond adequately to the
questions of the Court and had failed to provide sufficient
documentation detailing the conditions in which he had been held. In
particular, he noted that he had been detained at the Burgas
Investigation Service in the initial months after his arrest.
However, in respect of this period no information or data had been
provided. As it was common knowledge that these detention facilities
were much worse than the prisons, it must be concluded that the
applicant had not been examined by a doctor over the said period in
spite of his age.
As
to the adequacy of the provided medical treatment, the applicant
noted that on 21 November 1997 the doctor at Stara Zagora Prison had
established that he suffered from inguinal hernia and angiopathy. The
inguinal hernia had been operated on four months later, which should
be considered inadequate, while the angiopathy had never been
treated. Thus, it must be considered that he did not receive adequate
care for these conditions. As the applicant’s health had
allegedly not been monitored over the period, it cannot be assessed
to what extent the lack of treatment for the angiopathy contributed
to the subsequent stroke.
In
respect of the treatment provided for the stroke he had suffered, the
applicant noted that the Government had once again failed to provide
sufficient data in respect of the initial medical care provided at
the infirmary of Stara Zagora Prison, so it cannot be established
whether that care was sufficient or timely. Moreover, the event
itself is questionable as the applicant was exerting himself when it
happened and could therefore have been doing hard manual labour of
some sort which he should not have been allowed to do in view of the
medical restriction on heavy lifting. As to the subsequent care at
Sofia Prison Hospital, it was argued that the applicant had not been
monitored closely enough because the doctors visited him every day
only at the beginning of his stay there. Subsequently, such visits
became less and less frequent. His blood pressure was also not
checked regularly over the period.
As
to the decision of 21 July 2000 to release him on bail, the applicant
argued that it had been taken too late, as his health had already
deteriorated significantly. Moreover, there had been unjustified
delays even after the procedure had been initiated by the medical
commission and the warden at the beginning of May 2000. Note was also
taken of the inexcusable event of 20 June 2000 when, in clear
violation of the existing medical restrictions, his life had been
endangered as a result of being allowed to go to court to attend a
hearing without an escort or a wheelchair.
In
conclusion, the applicant disagreed with the position of the
Government and considered that he had been subjected to inhuman and
degrading treatment in contravention of Article 3 of the Convention
as a result of having been detained for a period of over three years
in spite of his age, disability and rapidly deteriorating state of
health. This had placed him in a situation not comparable with that
of other detainees, as he had had to endure much greater hardship as
a result of having to fend for himself without assistance or care
from relatives. Moreover, this had been evident and had been
documented by the journalist in the interview of 1 July 2000.
B. Admissibility
The
Court notes at the outset that the application was lodged with the
Court on 27 July 2000. It further notes that it can examine
conditions of detention only at facilities in which an applicant
continued to be detained during the six months prior to the date of
his application (see Koval v. Ukraine (dec.), no.
65550/01, 30 March 2004). Thus, the Court is competent to assess the
conditions, and any medical assistance provided, only at the Stara
Zagora Prison and Sofia Prison Hospital.
It
follows that the part of the complaint under Article 3 in respect of
the detention facility of the Burgas Investigation Service has been
introduced out of time and must be rejected in accordance with
Article 35 §§ 1 and 4 of the Convention.
The
Court notes that the complaint in respect of Stara Zagora Prison and
Sofia Prison Hospital is not manifestly ill-founded within the
meaning of Article 35 § 3 of the Convention. It further notes
that it is not inadmissible on any other grounds. This part of the
complaint must therefore be declared admissible.
C. Merits
1. General principles
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. The assessment of this minimum is
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
Ireland v. the United Kingdom, 18 January 1978, § 162,
Series A no. 25). In the context of deprivation of liberty the
Court has consistently stressed that to fall under Article 3 the
suffering and humiliation involved must in any event go beyond that
inevitable element of suffering or humiliation connected with the
detention (see, mutatis mutandis, Tyrer v. the United
Kingdom, 25 April 1978, § 30, Series A no. 26, and
Soering v. the United Kingdom, 7 July 1989, § 100, Series
A no. 161). The Court often faces allegations of insufficient or
inadequate medical care in places of detention. In exceptional
circumstances, Article 3 may go as far as requiring the conditional
liberation of a prisoner who is seriously ill or disabled. Thus, in
Farbtuhs v. Latvia, (no. 4672/02, 2 December 2004), the
Court concluded that the detention of a disabled
seventy-nine-year-old applicant was in breach of Article 3 on account
of “his age, infirmity and health situation” (see also
Papon v. France (no. 1) (dec.), no. 64666/01, ECHR 2001-VI, and
Priebke v. Italy (dec.), no. 48799/99, 5 April 2001).
In
deciding whether or not the detention of a seriously ill person
raised an issue under Article 3 of the Convention, the Court has
taken into account various factors. Thus, in Mouisel v. France
(no. 67263/01, §§ 40 42, ECHR 2002 IX) the
Court examined such elements of the case as (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.
This test was further developed in the case of Gelfmann v.
France (no. 25875/03, 14 December 2004), where the Court
took into account, among other relevant factors, the dynamics of the
applicant’s health condition, the possibility of conditional
release or parole for a seriously ill detainee if his health
deteriorated, and the applicant’s own attitude (namely his
persistent refusal to cooperate with the doctors). In the cases
of Henaf v. France (no. 65436/01, §§ 49 et
seq., ECHR 2003 XI) and Mouisel (cited above) the Court
also analysed whether the application of handcuffs or the shackling
of a seriously ill detainee to his bed was justified by any security
risks. The applicant’s potential “dangerousness”
was also taken into account in the case of Sakkopoulos v. Greece
(no. 61828/00, § 44, 15 January 2004) in order to decide
whether his continuous detention was justified.
In
most cases concerning the detention of ill persons the Court has
examined whether or not the applicant received adequate medical
assistance in prison. The Court reiterates in this respect that even
if Article 3 does not entitle a detainee to be released “on
compassionate grounds”, it always requires the health and
well-being of detainees to be adequately secured by, among other
things, providing them with the requisite medical assistance (see
Kudła [GC], cited above, § 94; see also Hurtado
v. Switzerland, 28 January 1994, § 79, Series A no.
280-A, opinion of the Commission; Kalashnikov v. Russia, no.
47095/99, §§ 95 and 100, ECHR 2002 VI; and
Khudobin v. Russia, (no. 59696/00, § 96, ECHR 2006 ...
(extracts)).
The
“adequacy” of medical assistance remains the most
difficult element to determine. The European Committee for the
Prevention of Torture and Inhuman or Degrading Treatment or
Punishment has proclaimed the principle of comparability of health
care in prison with that in the outside community (see the 3rd
General Report [CPT/Inf (93) 12]). However, the Court has not always
adhered to this standard, at least when it comes to medical
assistance to convicted prisoners (as opposed to those in detention).
In particular, on several occasions the Court has held that Article 3
of the Convention cannot be interpreted as securing for every
detained person medical assistance of the same level as “in the
best civilian clinics” (see the case of Mirilashivili v.
Russia (dec.), no. 6293/04, 10 July 2007). In the case of Grishin
v. Russia (no. 30983/02, § 76, 15 November 2007) the Court
went further, holding that it was “prepared to accept that in
principle the resources of medical facilities within the penitentiary
system are limited compared to those of civil clinics”.
2. Application of these principles to the present case
The
Court observes that at the time of his arrest on 17 August 1997 the
applicant was sixty-three years old and had pre-existing medical
conditions, as he suffered from inguinal hernia and angiopathy, which
were identified on 21 November 1997 upon his arrival in Stara Zagora
Prison. Once detected, the applicant started treatment for the
inguinal hernia and had an operation at Sofia Prison Hospital on
10 March 1998. He apparently made a full recovery and was even
given thirty days’ home leave to recuperate. Thus, he appears
to have been adequately treated for this condition.
As
to the angiopathy, there appears to have been no particular treatment
prescribed for the applicant. However, the Court is unaware whether
the applicant’s condition was treatable and notes that he
failed to provide any substantive submissions in that respect, such
as a medical expert’s opinion or information of subsequent
treatment obtained after release, other than to claim that the
condition should have been addressed. Thus, on the basis of the
information before it, the Court is unable to assess whether the lack
of treatment of the applicant’s angiopathy amounted to a lack
of provision of requisite medical assistance. As to the applicant’s
claim of a possible link between the lack of treatment of the
angiopathy and the subsequent stroke, the Court once again notes that
no medical evidence or expert opinion was presented to that effect
other than the applicant’s assertions. Thus, it would be pure
speculation on the part of the Court to conclude one way or another
as to a possible causal link, if any, between the two conditions.
In
respect of the stroke suffered by the applicant on 28 January 2000,
the Court notes that the applicant was immediately taken into the
prison infirmary and then to the emergency room at Stara Zagora
hospital, where various tests were performed, including a CAT scan of
the brain. He was treated for the immediate after-effects and, after
his condition stabilised, on 18 February 2000 he was transferred for
further treatment and rehabilitation to the neurological ward of
Sofia Prison Hospital. There the applicant started physiotherapy on
23 February 2000 and, as indicated in the report of 1 March 2000,
appeared to respond to the treatment, so it was considered
unnecessary to move him to an outside medical facility. Accordingly,
his treatment continued at Sofia Prison Hospital where his condition
was monitored regularly, albeit not every day.
In
view of the above actions undertaken by the prison authorities, the
Court does not find that during this period the applicant failed to
receive the requisite medical assistance. Moreover, he has not
indicated in what respect the medical assistance received at the
Sofia Prison Hospital during this period would have been different
had he been in a civil medical facility.
When
the applicant’s medical condition did deteriorate towards the
end of April or the beginning of May, further tests were conducted,
including a CAT scan on 4 May 2000. When the results showed that
there was an encephalomacic lesion on the internal cavity of the
applicant’s brain the head of the neurological ward of Sofia
Prison Hospital concluded that the applicant was “unsuitable to
remain in [prison] conditions”. Soon afterwards on 9 May 2000
the applicant was not allowed to participate in a hearing before the
Supreme Court of Cassation and the doctors reasoned that it might be
necessary to reassess his detention. Then, on 15 May 2000 a medical
commission proposed to the warden of Stara Zagora Prison that the
applicant be released from detention for an initial period of three
months in order to receive adequate treatment for his condition in a
specialised civil medical facility. As a result, on 18 May 2000 the
warden of Stara Zagora Prison proposed to the Burgas Regional Court
that the applicant’s detention be replaced with another measure
to secure his participation in the court proceedings.
The
domestic courts initially refused to release the applicant, as
evidenced by the decision of 2 June 2000 of the Supreme Court of
Cassation, citing conflicting medical reports and conclusions as to
his condition and treatment. In particular, they considered that it
had not been shown that the applicant’s medical condition
outweighed the risk of his absconding or reoffending. Nonetheless,
acting on a new request the Supreme Court of Cassation released the
applicant on bail a month and a half later on 21 July 2000 when it
considered more pertinent the conclusions and proposal of May 2000.
Considering
that the above procedure led to the applicant’s release on bail
on medical grounds, in spite of the fact that he had already been
convicted of murder at two levels of jurisdiction, the Court finds
that the prison, medical and judicial authorities responded
adequately to the changing requirements for his treatment. In
particular, within weeks of the discovery of the encephalomacic
lesion and the conclusion that the applicant could not be adequately
treated in prison facilities a proposal had been made to the
competent courts which eventually led to the applicant’s
release on bail. As to the delay in acting on the said proposals, the
Court notes that during this period the applicant continued to be at
Sofia Prison Hospital where medical assistance was available and
specialised assistance could be provided in case of need while the
applicant had difficulties in following the required course of
treatment after release due to financial constraints. Therefore, the
Court does not consider that the length of the delay can in itself be
considered to have amounted to inhuman and degrading treatment in
contravention of Article 3 of the Convention.
In
conclusion, the Court accepts that the applicant’s advanced age
and medical condition might have 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. However,
on the basis of the evidence before it and assessing the relevant
facts as a whole, the Court does not find it established that the
applicant was subjected to ill-treatment that attained a sufficient
level of severity to come within the scope of Article 3 of the
Convention.
Accordingly,
there has been no violation of that Article in the present case.
FOR THESE REASONS, THE COURT UNANIMOUSLY
Declares the complaint in respect of the
conditions of detention at Stara Zagora Prison and Sofia Prison
Hospital 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 7 January 2010, pursuant
to Rule 77 §§ 2 and 3 of the Rules of Court.
Claudia
Westerdiek Peer
Lorenzen
Registrar President
