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VERBINT v. ROMANIA - 7842/04 [2012] ECHR 585 (3 April 2012)
URL: http://www.bailii.org/eu/cases/ECHR/2012/585.html
Cite as:
[2012] ECHR 585
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THIRD
SECTION
CASE OF VERBINŢ v. ROMANIA
(Application
no. 7842/04)
JUDGMENT
STRASBOURG
3
April 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 Verbinţ v.
Romania,
The
European Court of Human Rights (Third Section), sitting as a Chamber
composed of:
Josep
Casadevall,
President,
Alvina
Gyulumyan,
Egbert
Myjer,
Ján
Šikuta,
Ineta
Ziemele,
Nona
Tsotsoria,
Mihai
Poalelungi,
judges,
and Santiago Quesada,
Section Registrar,
Having
deliberated in private on 13 March 2012,
Delivers
the following judgment, which was adopted on that date:
PROCEDURE
The
case originated in an application (no. 7842/04) against Romania
lodged with the Court under Article 34 of the Convention for the
Protection of Human Rights and Fundamental Freedoms (“the
Convention”) by a Romanian national, Mr Adrian Verbinţ
(“the applicant”), on 3 February 2004.
The
applicant was represented by Mr Nicolescu, a lawyer practising in
Piteşti. The Romanian Government (“the
Government”) were represented by their Agent, Mr Răzvan Horaţiu
Radu.
As Mr Corneliu Bîrsan, the judge elected in
respect of Romania, had withdrawn from the case (Rule 28 of the Rules
of Court), the President of the Chamber appointed Mr Mihai Poalelungi
to sit as ad hoc judge (Article 26 § 4 of the
Convention and Rule 29 § 1 of the Rules of Court).
The
applicant alleged that he had been subjected to inhuman treatment
which had put his life at risk, since when he had needed special
medical treatment it could not be provided in the prisons’
hospitals, he was in prison due to the length of the proceedings
regarding his third request for the suspension of the prison
sentence.
On
16 November 2009 the President of the Third Section decided to
communicate the complaint concerning the alleged inhuman conditions
in which the applicant was detained in spite of his medical condition
to the Government. It was also decided to examine the merits of the
application at the same time as its admissibility (Article 29 §
1).
THE FACTS
I. THE CIRCUMSTANCES OF THE CASE
The
applicant was born in 1963 and lives in Piteşti.
While
a student at a private law school, he unlawfully practised the
profession of lawyer from 1998 to 2000. He presented himself to his
clients as a lawyer, pretending that he was entitled to represent
them before the courts and public authorities. Although he was not
registered with the Bucharest Bar, he forged and used false powers of
attorney and contracts of legal assistance. He was paid by his
clients for the legal services provided.
A. Criminal proceedings against the applicant
On
20 February 2001 he was arrested for unlawfully practising the
profession of lawyer from 1998 to 2000 and sent to Jilava Prison.
By
a bill of indictment of 12 April 2001 of the Prosecutor’s
Office attached to the Bucharest Fourth District Court (Judecătoria
Sectorului 4 Bucureşti), he was formally indicted for
a part of the aforesaid charges. The case was severed and the part
concerning the rest of the charges against him and his former wife
was remitted to the police for further investigation.
On
30 May 2001, the Bucharest Fourth District Court sentenced the
applicant to four years’ imprisonment for fraud under Article
215 of the Criminal Code, forgery of official documents under Article
288 § 1 of the Criminal Code, use of forged documents under
Article 291 of the Criminal Code, and unlawful exercise of the
profession of lawyer under Article 281 of the Criminal Code, taken in
conjunction with Article 22 of Law no. 51/1995 on the
status of lawyer.
The
judgment was upheld by a final decision of the Bucharest Court of
Appeal on 13 December 2001.
B. The applicant’s medical condition in prison
While
he was serving his prison sentence, on 17 November 2002 the applicant
had a brain haemorrhage due to a double aneurysm and was hospitalised
in the Emergency Hospital of Bucharest until 25 November 2002.
On
3 December 2002 he underwent a surgical operation. Following the
operation, the applicant became infected with staphylococcus and
another condition (buttock and calcaneous bedsore).
Therefore, he needed two more operations, in January and March 2003.
The applicant alleged that after the surgery he was kept handcuffed
and was not turned in his bed while he was unconscious and that this
had caused the infection.
C. Suspension of the execution of the applicant’s
prison sentence on medical grounds
1. The first two suspensions of the execution
On
18 December 2002, the Bucharest Fourth District Court allowed an
application by the applicant for the suspension of his prison
sentence on medical grounds for a period of three months. The period
of suspension started on 24 December 2002, when the applicant was
released from Jilava Prison Hospital, where he was an inmate at that
time.
On
the grounds of his continuing ill-health the applicant submitted
another application for the suspension of his prison sentence for
another three months. By a judgment of 24 March 2003 the suspension
was granted.
The
two court judgments suspending the applicant’s prison sentence
were based on forensic reports issued by the Mina Minovici National
Forensic Institute (hereinafter called “the Forensic
Institute”). They revealed that the applicant was also
suffering from a liver disease (hypertrophic hepatic cirrhosis). The
experts found that the prison medical care system could no longer
offer the applicant the necessary treatment. During this period the
applicant was frequently hospitalised, not only for his infection but
also for psychiatric treatment. He suffered from severe depression
characterised by suicide attempts, considered by the doctors to be a
direct consequence of the aneurysm.
2. The proceedings regarding the third applicant’s
request for the suspension of the execution of the prison sentence
On
19 June 2003 the applicant submitted his third application for the
suspension of the execution of his prison sentence, since the
previous one was due to expire on 24 July 2003. He produced a medical
certificate for the court, which attested to his precarious medical
condition, caused by several conditions, such as: osteitis
frontal-parietal right, left cerebral artery aneurysm, aneurysm of
the left artery, arterial-venous malformation fronto parietal,
severe depressive disorder, status post cerebral aneurysm with
interemisferic haemorrhage broken, and chronic hepatitis.
On
the first hearing of 7 July 2003, the applicant, hospitalised in the
Piteşti Military Hospital, was
represented by counsel of his choosing. The court had admitted the
evidence requested by the applicant’s representative and
ordered a medical expert report to be made at the Forensic Institute.
On
28 July 2003, the court adjourned the proceedings because there was
no medical report in the case file.
On
29 July 2003 the medical report was submitted to the court registry
by the Forensic Institute. The court noticed that it was the same
medical report that had been already submitted in the previous
suspension request lodged by the applicant. The conclusion of the
report was that the condition of the applicant had not improved and
that he had to continue specific therapy through hospitalisation in a
medical unit belonging to the network of the Ministry of Health and
Family. Furthermore, it clearly stated that the applicant would not
be fit to resume serving his prison sentence for another three
months.
On
18 August 2003 the court ordered a new medical report, on the ground
that the one before it was based on previous investigations, and
ruled that the applicant had to be re examined.
On
19 August 2003, the court addressed the demand for another medical
report to the Forensic Institute.
On
8 September 2003, another surgical operation was scheduled, this time
for osteitis (inflammation of a bone, commonly involving swelling,
enlargement, tenderness and aching) of the skull. For this purpose
the applicant had to leave Piteşti, his city of residence, and
go to Bucharest. Therefore, he requested the permission of the
Piteşti police to leave the city.
Although
his request for suspension was pending, he was incarcerated again on
8 September 2003, the previous suspension having expired.
Between
8 and 26 September 2003, the applicant was incarcerated in the
hospital unit of Colibaşi Prison.
On
26 September 2003 the applicant was transferred to Jilava Prison
Hospital, where he remained until 27 November 2003.
The
hearings of 8 and 12 September, 6 and 28 October and 3 and
28 November 2003 were repeatedly adjourned for lack of a medical
report on the applicant.
28 The
judgment regarding the suspension of the prison sentence was rendered
on 19 January 2004, seven months after the applicant had lodged his
application. It dismissed the applicant’s request as being
without object, since a pardon had been granted to the applicant by
the presidential decree of 27 November 2003.
The
said judgment was given two months after the applicant had been
granted a pardon. The pardon was granted as result of interventions
and applications by the applicant’s mother to the President of
Romania, as well as public pressure, as the applicant’s
situation had been covered by newspapers.
He
was released from prison on 27 November 2003.
D. The applicant’s medical condition after
release from prison
The
medical condition of the applicant did not improve after his release
from prison.
In
2005 he was hospitalised three times.
In
February 2006 a part of the applicant’s skull, which had been
affected by osteitis, was surgically removed. A month later, in March
2006, he was operated on again to remove another part of the infected
bone.
E. Further criminal proceedings against the applicant
By
a bill of indictment of 28 June 2004 of the Prosecutor’s Office
attached to the Bucharest Fourth District Court, the applicant was
again formally indicted on the charges with respect to which the
initial file had been severed.
By
a judgment of the Bucharest Fourth District Court of 14 June 2005 he
was sentenced to another four years’ imprisonment. That
judgment was upheld by a final decision of the Bucharest Court of
Appeal on 27 April 2006.
On
3 August 2006, the applicant started his new sentence in Colibaşi
Prison. Between 6 and 20 February 2007 he was hospitalised in the
prison hospital.
Following
the request of the applicant for the recalculation of his prison
sentence resulting from the two criminal judgements, the one of
30 May 2001 and the last one, of 14 June 2005, taking into
account the part of the prison sentence already served by the
applicant, the County Court of Argeş decided in its final
decision of 26 March 2007 that the applicant’s prison term was
to be four years.
On
30 May 2007 the execution of the applicant’s prison sentence
was suspended and he was placed on probation and consequently
released from Colibaşi Prison.
II. RELEVANT DOMESTIC LAW
The
relevant provisions of Government Emergency Ordinance no. 56/2003
on certain rights of those serving custodial sentences, in force at
the time of the events in the instant case, as well as of the
Romanian Code of Criminal Procedure concerning suspension of prison
sentences (Articles 453 and 455) are described in Aharon
Schwarz v. Romania, no. 28304/02, §§ 66, 67, 12
January 2010.
THE LAW
I. ALLEGED VIOLATION OF ARTICLE 3 OF THE CONVENTION
The
applicant complained that he did not receive the special medical
treatment that he needed and which could not be provided in the
prison hospital, due to the fact that the domestic court had given a
decision on his third request for the suspension of his prison
sentence only after more than seven months. This situation caused him
intense physical and psychological suffering and aggravated his
health to such extent that he had to undergo new surgical procedures,
which removed a large part of his infected skull.
He relied on 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
1. Submissions of the parties
(a) The Government
The
Government argued that the applicant had not exhausted domestic
remedies, since he had failed to take every legal action available to
him in Romanian law to complain about the conditions of detention or
of lack of medical treatment. Furthermore, they insisted that the
applicant had failed to provide any evidence that there were no
effective remedies in the national legal system. They stressed that
in accordance with the Court’s case-law (indicating, among
other cases, Petrea v. Romania, no. 4792/03, 29 April 2008,
and Măciucă v. Romania, no. 25763/03, 26 May 2009)
the procedure provided by Ordinance 56/2003 was an adequate and
effective remedy to afford the applicant redress in respect of the
alleged breaches.
In
addition, they averred that the applicant could have lodged a civil
action for damages on the basis of Article 998 999 of the former
Civil Code, or a criminal complaint against the prison
authorities.
(b) The applicant
The
applicant averred that he had taken the appropriate legal action, and
that other remedies were not effective.
2. The Court’s assessment
The
Court observes that the rule of exhaustion of domestic remedies
contained in Article 35 § 1 of the Convention requires that
normal recourse should be had by an applicant to domestic remedies
which are available and sufficient to afford redress in respect of
the breaches alleged. The existence of the remedies in question must
be sufficiently certain not only in theory but in practice, failing
which they will lack the requisite accessibility and effectiveness
(see, among other authorities, Akdivar and Others v. Turkey,
judgment of 16 September 1996, Reports of Judgments and
Decisions 1996 IV, § 65).
In
the area of the exhaustion of domestic remedies there is a
distribution of the burden of proof. It is incumbent on the
Government claiming non-exhaustion to satisfy the Court that the
remedy was an effective one available in theory and practice at the
relevant time, that is to say that it was accessible, was capable of
providing redress in respect of the applicant’s complaints, and
offered reasonable prospects of success. However, once this
obligation has been satisfied it falls to the applicant to establish
that the remedy advanced by the Government had in fact been tried or
was for some reason inadequate or ineffective in the particular
circumstances of the case, or that there existed special
circumstances absolving him or her of the requirement (ibid., §
68).
In
addition, Article 35 § 1 must be applied with some degree of
flexibility and without excessive formalism. This means amongst other
things that it must take realistic account not only of the existence
of formal remedies in the legal system of the Contracting Party
concerned, but also of the general legal and political context in
which they operate, as well as the personal circumstances of the
applicants (ibid., § 69).
The
Court notes that the applicant had asked for the suspension of his
prison sentence on the ground that the medical treatment he needed
and the surgical intervention he had to undergo could not be provided
by prison hospitals.
The
Court notes that the reason provided by the domestic court, which was
analysing the request for suspension of the applicant’s prison
sentence, for continually adjourning the hearings, was the absence of
the medical report regarding the applicant’s health. The said
report had as its main objective the establishment of the facts as to
whether or not the medical treatment needed by the applicant could
have been provided by the prison hospital. Even seven months later
the medical report had still not been produced, the reason for
dismissing the applicant’s request being the fact that in the
meantime he had been granted a presidential pardon.
Moreover,
according to the national law, the court which would have had
jurisdiction to analyse the request forwarded by the applicant,
according to the procedure provided by Ordinance 56/2003, was the
same as that for the court which ruled on the applicant’s
request for the suspension of the execution of his sentence.
Therefore, the Court cannot see how the same court could have reacted
more promptly to a similar request with a different legal basis.
In
this respect, the Court is not convinced of the necessity of lodging
another request with largely the same object as the request for the
suspension of the prison sentence, namely to determine whether the
conditions from which the applicant was suffering could have been
treated in prison hospitals (see also the above-mentioned judgment,
Aharon Schwarz, § 95).
In
the light of the foregoing, the Court considers that the Government’s
preliminary objection on the ground of non exhaustion cannot be
accepted.
Noting further that this complaint is not manifestly ill-founded
within the meaning of Article 35 § 3 of the Convention, and that
it is not inadmissible on any other grounds, the Court concludes that
it must be declared admissible.
B. Merits
1. The parties’ submissions
(a) The applicant
The
applicant stressed that the first two requests for the suspension of
his prison sentence were allowed on the basis of the reports of the
Forensic Institute, which stated that he could not be treated in the
prison hospital. This aspect contradicts the Government’s
opinion that he had received proper medical treatment in the prison
hospital.
He
alleged that the medicines he needed had in fact been provided by
his mother.
He
pointed out that the conditions of detention, particularly as regards
his state of health, were poor, and not adequate as the Government
claimed, and caused him immense physical suffering.
The
applicant concluded that keeping him in detention in a place that
could not provide protection for his health, which was in constant
decline, led to the deterioration of his health and caused him
intense psychological suffering, as he knew that he could die if he
could not obtain medical treatment in an ordinary hospital.
(b) The Government
After
mentioning the main principles established by the Court in
its case-law in respect of conditions of detention and lack of
medical treatment while in detention, the Government contended that
the applicant was regularly examined by doctors and received adequate
medical treatment for his illnesses. They stressed that the applicant
did not submit any evidence to the contrary.
They
maintained that in the period between 8 and 26 September 2003 the
applicant was in the medical unit of Colibaşi Prison, insisting
that good conditions were provided there for detainees who were ill.
In
respect of the medical treatment the Government claimed that between
26 September and 27 November 2003 he had received adequate medical
treatment.
With
regard to his psychological state, the applicant had been supervised
by a therapist educator who performed educational activities and had
daily individual conversations with all the detainees.
The
Government claimed that for the period between 26 September and 27
November 2003, while the applicant was in Jilava Prison Hospital, he
benefited from adequate conditions for his state of health.
They
also alleged that the applicant’s medical file revealed that he
was suffering from chronic hepatitis and that his general physical
condition had been deteriorating since 1997, and accordingly no
medical record could reveal any causal link between the medical
problems suffered by the applicant and his detention.
In
respect of the length of the proceedings concerning the applicant’s
third request for the suspension of the prison sentence, the
Government maintained that the domestic court had an active role
throughout the proceedings, and that it cannot be deemed that the
applicant suffered any infringements of his rights during this
period.
They
concluded that the evidence gathered could not enable the Court to
find beyond any reasonable doubt that the applicant was subjected to
treatment that attained a sufficient level of severity to come within
the scope of Article 3. Therefore, in the absence of sufficient
evidence they asked the Court to find that there was no violation of
Article 3, in either the material or the procedural limbs.
2. The Court’s assessment
(a) General principles
The
Court observes at the outset that Article 3 enshrines one of the most
fundamental values of a democratic society. It prohibits in absolute
terms torture or inhuman or degrading treatment or punishment,
irrespective of the victim’s conduct (see, among other
authorities, Labita v. Italy [GC], no. 26772/95, §
119, ECHR 2000-IV).
It
reiterates that 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, among other authorities, Ireland v. the United
Kingdom, 18 January 1978, § 162, Series A no. 25;
Costello-Roberts v. the United Kingdom, 25 March 1993, §
30, Series A no. 247-C; and Dougoz v. Greece, no.
40907/98, § 44, ECHR 2001-II).
The
Court observes that it cannot be ruled out that the detention of a
person who is ill may raise issues under Article 3 (see Mouisel v.
France, no. 67263/01, § 38, ECHR 2002-IX). Although
this Article 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 by, among other things, providing them with
the requisite medical assistance (see Sarban v. Moldova,
no. 3456/05, § 77, 4 October 2005, and Khudobin v. Russia,
no. 59696/00, § 93, ECHR 2006-XII (extracts)).
The
Court has also emphasised the right of all prisoners to conditions of
detention which are compatible with respect for their human dignity,
that the manner and method of the execution of the measure do not
subject them to distress or hardship of an intensity exceeding the
unavoidable level of suffering inherent in detention (see Kudła
v. Poland [GC], no. 30210/96, § 94, ECHR 2000-XI, and Jalloh
v. Germany [GC], no. 54810/00, § 68, ECHR 2006-IX).
Hence, a lack of appropriate medical care and, more generally, the
detention in inappropriate conditions of a person who is ill, may in
principle amount to treatment contrary to Article 3 (see, for
example, İlhan v. Turkey [GC], no. 22277/93, § 87,
ECHR 2000VII).
In
assessing whether the continued detention of an applicant is
compatible with his or her state of health, the Court must take
account of factors, such as: (a) the prisoner’s condition, (b)
the quality of care provided and (c) whether or not the applicant
should continue to be detained in view of his or her state of health
(see Farbtuhs v. Latvia, no. 4672/02, § 53,
2 December 2004; Rivière v. France, no. 33834/03,
§ 63, 11 July 2006; and Enea v. Italy [GC], no. 74912/01,
§ 59, ECHR 2009 ...).
(b) Application of these principles in the
present case
1. The substantive limb of the alleged
ill-treatment
Turning
to the present case, the Court must determine whether during his
detention in Colibaşi Prison from 8 to 26 September 2003 and in
Jilava Prison from 26 September to 27 November 2003 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 Serban,
cited above, § 78).
The
Court notes that it is undisputed that the applicant was suffering
from a number of serious illnesses, including osteitis
frontal parietal right, left cerebral artery aneurysm, aneurysm
of the left artery, arterial-venous malformation frontal-parietal,
severe depressive disorder, status post cerebral aneurysm with
interemisferic haemorrhage, broken, and chronic hepatitis, confirmed
by the medical certificate submitted by the applicant to the domestic
court on June 2003 together with the request for the third suspension
of his prison sentence. Therefore, throughout the applicant’s
incarceration doctors stressed that he should receive specialised
treatment and should be under constant medical supervision.
With
regard to the medical treatment received, the Court notes that the
authorities made efforts to meet the applicant’s health needs
by hospitalising him in the medical units of Colibaşi and Jilava
prisons. Moreover, the Court notes that there is no indication of any
negligence on the part of the medical services, nor has the applicant
adduced any evidence to show that the authorities were negligent in
administering medical treatment to him.
The
applicant suggested that the medical treatment he had received had
not had a stabilising effect on his health, but the contrary as he
needed an urgent surgical intervention. However, it is not for the
Court to speculate whether the lack of surgical intervention had as a
direct consequence the deterioration of his health. Besides,
according to the information submitted by the applicant, he had not
undergone any surgical intervention immediately after his release
from prison. He underwent two surgical interventions in 2006 only.
The
Court finds that the applicant failed to submit any details which
might indicate that the conditions of his detention in the prisons’
hospitals were particularly difficult or that they caused him any
hardship other than that inherent to detention, or incompatible with
his health.
Therefore,
having regard to the above considerations and to the fact that his
detention had only lasted two months and nineteen days, the Court can
conclude that there has been no violation of Article 3 under its
substantive limb.
(ii). The procedural limb of the alleged
ill-treatment
The
Court has already stressed the need for national legal systems to
implement judicial procedures concerning requests submitted by
detainees to be released for medical reasons. It considers that such
procedures represent guarantees of the protection of prisoners’
health and well-being that the State should reconcile with the
legitimate requirements of punishments that deprive a detainee of
liberty (see Tekin Yıldız v. Turkey, no. 22913/04,
§ 73, 10 November 2005, and Mouisel, cited above,
§§ 4546).
In
this context, the Court considers that the general interdiction
provided for by Article 3 of the Convention, as well as the special
obligations that this article imposes on the Contracting States with
respect to measures of deprivation of liberty, would be deprived of
their contents in the absence in the domestic legal systems of such
mechanisms and in the absence of the control exercised by the Court
over the effectiveness of the mechanism in specific cases.
The
Court notes that the applicant, referring to his severe medical
condition and his need for surgical intervention, submitted his third
request for the suspension of his prison sentence on 19 June 2003. On
8 September 2003, on the very day that a new surgical intervention
was scheduled, he was reincarcerated, although his request for
suspension was pending.
With
regard to the procedural limb of the alleged ill treatment,
the Court notes that the prolongation of the examination of the
applicant’s request for the suspension of the prison sentence
for a period of seven months was caused by the absence of an updated
medical report that should have been submitted by the Forensic
Institute. It reflects the deficiencies of the domestic system with
respect to the existing mechanism for the suspension of the prison
sentences. The Court arrived at the same conclusion in the
above-mentioned case, Aharon Schwarz (§ 106), where the
examination of the applicant’s request for the suspension of
the prison sentence took two years and three months. In the present
case, the applicant’s request for suspension was dismissed
after seven months, because in the meantime the applicant had been
granted a presidential pardon due to his special situation. However,
the Court cannot make any inferences with respect to the possible
duration of the proceedings if there had been no presidential pardon.
Having
regard to the ineffective mechanism implemented by the domestic
system with respect to the suspension of prison sentences, the Court
finds that there has been a violation of Article 3 of the Convention
under its procedural limb.
II. OTHER ALLEGED VIOLATIONS OF THE CONVENTION
Lastly,
relying on Article 3 of the Convention, the applicant complained that
he was kept handcuffed in the hospital after the first surgical
intervention of 3 December 2002, causing him additional and
unnecessary health problems.
The
Court notes at the outset that the complaint,
according to which the applicant was kept handcuffed after his first
surgical operation, was not raised before the local
authorities, or at least not in substance. It follows that this
complaint must be rejected under Article 35 §§ 1 and 4 of
the Convention, for non-exhaustion of domestic remedies. If it were
argued that he had no effective channel of complaint at his disposal,
the six month rule, with which the applicant did not comply,
would come into operation (see, mutatis mutandis, Rosengren v.
Romania (partial dec.), no. 70786/01, 27 April 2004).
With
regard to the rest of the complaints raised by the applicant under
Article 2 and Article 8 of the Convention, the Court appreciates that
there is no need for a separate analysis of the complaints, taking
into account the violation found under Article 3.
III. APPLICATION OF ARTICLE 41 OF THE CONVENTION
Article 41 of the Convention provides:
“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.”
A. Damage
The
applicant claimed 27,509.4 Romanian lei (RON), (EUR 6,549.86) in
respect of pecuniary damage, representing the cost of the expenses he
incurred for his medical treatment between December 2003 and
May 2010. He added that the monthly cost of his medical
treatment amounted to RON 315.66 (EUR 75.16), and asked that the
Government be ordered to pay for his medical treatment every month,
for as long as necessary. He asked for an additional amount of RON
10,500 (EUR 2,500) for the expenses caused by the surgical
interventions necessary for the recovery of his head and skin which
had been infected in prison. He also asked the Court for a monthly
amount corresponding to the loss of his capacity for work, without
mentioning an exact amount.
In
respect of non-pecuniary damage, the applicant asked for
4,000,000 euros (EUR) justified by the extreme pressure, stress
and suffering to which he was exposed. He added that his situation
should be compared to that of a person convicted on death row,
because he knew that he could die if not released from prison.
The
Government stated that the amounts claimed by the applicant for the
non-pecuniary damage were speculative, excessive and not proven, and
asked the Court, if it found a violation, to consider that violation
of itself to be sufficient just satisfaction.
In
respect of the compensation for pecuniary damage claimed by the
applicant, the Government stated that it was not justified by
adequate documents; namely that the calculations submitted by the
applicant did not have an official character.
The
Court rejects the claim in respect of pecuniary damage, as the
applicant did not submit any documents to justify it. On the other
hand, having regard to its findings concerning the applicant’s
complaints under Article 3 of the Convention, the Court
considers that the applicant suffered damage of a non-pecuniary
nature as a result of the inefficiency of the procedural mechanism
for the suspension of the prison sentence for medical reasons, 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 Aharon
Schwarz, cited above, § 127) and deciding on an equitable
basis, the Court awards EUR 7,500, plus any tax that may be
chargeable on that amount.
B. 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 complaints concerning the lack of
adequate medical treatment, the inappropriate conditions of detention
in Jilava and Colibaşi prisons and inefficiency of the
procedural mechanism for the suspension of the prison sentence for
medical reasons admissible and the remainder of the application
inadmissible;
Holds that there has been no violation of
Article 3 of the Convention in respect of the lack of adequate
medical treatment and the inappropriate conditions of detention in
Jilava and Colibaşi prisons;
Holds that there has been a violation of Article
3 of the Convention in respect of the inefficiency of the procedural
mechanism for the suspension of the prison sentence for medical
reasons;
Holds that there is no need to examine the
complaints under Articles 2 and 8 of the Convention;
Holds
(a) that
the respondent State is to pay the applicant, within three months of
the date on which the judgment becomes final, in accordance with
Article 44 § 2 of the Convention, EUR 7,500 (seven thousand
five hundred euros), plus any tax that may be chargeable, in respect
of non pecuniary damage, to be converted into the respondent
State’s national currency at the rate applicable on the date of
settlement;
(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 3 April 2012, pursuant to
Rule 77 §§ 2 and 3 of the Rules of Court.
Santiago Quesada Josep
Casadevall Registrar President
