CEDH · CASELAW;DECISIONS;DECCOMMISSION;ENG — 21 mai 1997

.sDD6737AE { font-size:11pt } .s211D6B00 { margin-top:0pt; margin-bottom:0pt; line-height:normal; widows:0; orphans:0; font-size:8.5pt } .sBB9EE52A { font-family:Arial }                          AS TO THE ADMISSIBILITY OF                           Application No. 28499/95                       by Harald METZGER                       against Austria          The European Commission of Human Rights (First Chamber) sitting in private on 21 May 1997, the following members being present:              Mrs.   J. LIDDY, President            MM.    E. BUSUTTIL                  A. WEITZEL                  C.L. ROZAKIS                  L. LOUCAIDES                  B. MARXER                  B. CONFORTI                  N. BRATZA                  I. BÉKÉS                  G. RESS                  A. PERENIC                  C. BÎRSAN                  K. HERNDL                  M. VILA AMIGÓ            Mrs.   M. HION            Mr.    R. NICOLINI              Mrs.   M.F. BUQUICCHIO, Secretary to the Chamber        Having regard to Article 25 of the Convention for the Protection of Human Rights and Fundamental Freedoms;        Having regard to the application introduced on 7 August 1995 by Harald METZGER against Austria and registered on 11 September 1995 under file No. 28499/95;        Having regard to the report provided for in Rule 47 of the Rules of Procedure of the Commission;        Having deliberated;        Decides as follows:   THE FACTS        The applicant, born in 1954, is an Austrian citizen. At the time of the introduction of his application, he was detained at the Graz Karlau prison. Since January 1997 he is detained at the Garsten prison.        The facts of the case, as submitted by the applicant may be summarised as follows.        On 23 March 1995 the applicant, represented by counsel, requested that the execution of his sentence be suspended for the purpose of carrying out a bypass operation.        His request was supported by a medical report of 10 April 1995 by the prison hospital, stating that the applicant had already suffered a cardiac infarct in 1994. The subsequent medicinal treatment had proved to be insufficient. In view of the applicant's deteriorating state of health a number of examinations had been carried out, which had shown that there was an acute danger of a further heart attack. The report, referring to consultations with the University Clinic for Heart Surgery and Cardiology at the Graz Regional Hospital, recommended that a bypass operation be carried out. A further report of the prison hospital of 3 May 1995 recommended that an operation, which was scheduled for autumn, be carried out as soon as possible.        On 22 May 1995 the Graz Regional Criminal Court (Landesgericht für Strafsachen) dismissed the applicant's request. It noted that the applicant was serving sentences amounting to a total of twenty-six and a half years' imprisonment. On the basis of the medical reports before it, the Court found that the applicant suffered from a serious illness. Further, it had regard to a report of the prison administration of 17 May 1995, according to which arrangements could be made for the applicant within the framework of the execution of his sentence, to be operated at the Graz Regional Hospital and to spend a rehabilitation period at the Wilhelmshöhe branch of the Vienna Josefstadt prison. In conclusion it found that the requirements for suspending the execution of the applicant's prison sentence were not met.        On 6 June 1995 the applicant appealed from this decision. He claimed that the operation without specific rehabilitation would not have any positive effect. He alleged that the Wilhelmshöhe branch of the Vienna Josefstadt prison was a specialised institution for prisoners suffering from tuberculosis and was not at all equipped and suited for rehabilitation after a heart operation. On the contrary, there would even be a higher risk of infection by the other patients. He criticised in particular the fact that the court only relied on the report of 17 May 1995, according to which agreement as to his placement for the rehabilitation period had been reached between the administrators of the two prisons involved, who lacked the medical expertise to decide whether the Wilhelmshöhe branch had the facilities required for treating a heart patient. He suggested that the court order an expert opinion to clarify this question.        On 30 June 1995 the Graz Court of Appeal (Oberlandesgericht) dismissed the applicant's appeal. It noted that, in 1979, the applicant had been convicted of murder and had been sentenced to fourteen years' imprisonment. In 1984 he had been convicted inter alia of attempted incitement to murder and aggravated intimidation and had been sentenced to ten years' imprisonment. In 1989 he had been convicted of selling drugs and had been sentenced to two and a half years' imprisonment.        The Court of Appeal referring to S. 133 of the Execution of Sentences Act (Strafvollzugsgesetz), noted that a suspension of the execution of a sentence had to be granted if a prisoner was seriously ill and if there were reasons to believe that he was in peril of his life. However, S. 5 of the said Act excluded a suspension as regards a prisoner who presented a danger to public security or to other persons, on account of the nature and motive of the offences of which he had been convicted or on account of his life conduct: in such cases a subsidiary detention (Ersatzhaft) had to be ordered, which could be carried out in a public hospital if necessary.   The Court, having regard to the gravity of the offences for which the applicant had been sentenced to altogether twenty-six and a half years' imprisonment and considering the fact that he had even committed serious offences while being in prison, namely attempted incitement to murder and aggravated intimidation as well as selling drugs, concluded that he was a particularly dangerous person within the meaning of S. 5 of the Execution of Sentences Act. Thus, his request for suspension of the execution of his sentence could not be granted.        Subsequently, on 5 September 1995, the applicant filed a renewed request for a suspension of the execution of his sentence for the purpose of undergoing the bypass operation and subsequent rehabilitation in a hospital of his own choice. He submitted that he was, under the psychological strain of being imprisoned, unable to prepare himself for the operation and in particular to follow the necessary diet for reducing his weight. Further, he claimed to have lost all confidence in the doctors of the Graz Regional Hospital as, according to him, they should insist that the rehabilitation be carried out in an appropriate specialised rehabilitation centre instead of the Wilhelmshöhe branch of the Vienna Josefstadt prison. The applicant also repeated his objections to a rehabilitation at this institution. In conclusion, the applicant argued that the bypass operation as well as its preparation and the rehabilitation could only be properly carried out if he was released from prison.        On 2 October 1995 the Graz Regional Court, referring to the previous decisions, refused the applicant's request. It reaffirmed that the operation did not necessitate a suspension of the execution of the applicant's sentence and noted that, meanwhile, a date for the operation had been fixed by the University Clinic at the Graz Regional Hospital.        On 9 November 1995 the Graz Court of Appeal dismissed the applicant's appeal. It confirmed its decision of 30 June 1995 as regards the applicant's dangerousness and added that an expert opinion submitted by the applicant did not show that his aggressiveness had diminished. The expert mainly claimed that the applicant was so obsessed with his illness that he was not likely to commit further offences if released, but did not show that he had undergone a sustainable change of his personality. As regards the applicant's allegations that an appropriate preparation for the operation and subsequent rehabilitation could not be achieved in prison, the Court referred to S. 71 para. 2 of the Execution of Sentences Act, according to which a prisoner had to be transferred to a public hospital if necessary medical treatment could not be carried out in prison. In particular the type and scope of rehabilitation measures had to be assessed by the doctors after the operation. The above-mentioned provision guaranteed that it would be carried out in a hospital if the doctors in charge considered it necessary.        On 18 January 1996 the Graz Regional Court dismissed a further request by the applicant for a suspension of the execution of his sentence. It noted that the applicant had refused to undergo the operation which had been scheduled for October 1995 at the University Clinic of the Graz Regional Hospital. According to a report of the prison hospital of 31 October 1995 the applicant had been informed that his refusal might increase the risk of a further cardiac infarct. In any case, the possibility of an operation at the Graz Regional Hospital was still open to the applicant and, none of the relevant circumstances having changed, the requirements for a suspension of the execution of his sentence still were not met.        On 27 December 1996 the Graz Regional Court dismissed the applicant's renewed request for a suspension of the execution of his sentence, mainly referring to the previous decisions.        On 6 February 1997 the Graz Court of Appeal confirmed this decision, adding as regards the applicant's dangerousness that preliminary investigations on the suspicion of drug dealing were currently conducted against him.     COMPLAINTS        The applicant complains under Article 3 of the Convention that he was denied the necessary medical treatment as regards his heart disease. He submits in particular that the courts, when dismissing his request for suspension of the execution of his sentence, failed to hear a medical expert on the question whether the rehabilitation after his bypass operation could be carried out in prison.     THE LAW        The applicant complains about the alleged denial of medical treatment in prison. He invokes Article 3 (Art. 3) of the Convention, which reads as follows:        "No one shall be subjected to torture or to inhuman or degrading      treatment or punishment."        The Commission first recalls the Convention organs' case-law, according to which ill-treatment must attain a minimum level of severity if it is to fall within the scope of Article 3 (Art. 3). The assessment of this minimum is, in the nature of things, relative and will depend on all the circumstances of the case (see Eur. Court HR, Ireland v. United Kingdom judgment of 18 January 1978, Series A no. 25, p. 65, para. 162).        The Commission further recalls that inhuman treatment may be found to exist, when a person's detention as such causes him ill- health. In such cases, the Commission examines in particular the medical treatment at that person's disposal. Moreover, the State has an obligation to maintain a continuous review of the detention arrangements employed with a view to ensuring the health and well-being of all prisoners, having due regard to the ordinary and reasonable requirements of imprisonment (cf. No. 21915/93, Dec. 12.1.1995, D.R. 80, p. 108 at p. 128 with further references).        The Commission notes that the applicant is a long-term prisoner who has apparently been detained since 1979. There is nothing in the file to suggest that the applicant's heart disease is a direct consequence of his detention (see Chartier v. Italy, Comm. Report 8.12.82, D.R. 33, p. 41 at p. 58).        According to the medical reports in the file, the applicant suffered a cardiac infarct in 1994 and, following a deterioration of his state of health, the prison hospital recommended in spring 1995 that a bypass operation be carried out. Thereupon, the applicant requested a suspension of the execution of his sentence. In a first set of proceedings, the courts, having regard to the gravity of the offences committed by the applicant and his dangerousness refused his request. They referred in particular to SS. 5 and 133 of the Execution of Sentences Act which excludes a suspension of the sentence in case of particularly dangerous prisoners and instead provides for a subsidiary detention which has to be carried out in a public hospital, if necessary. More specifically they noted that the authorities of the Graz Karlau prison, where the applicant was detained at the time, envisaged an operation at the University Clinic of the Graz Regional Hospital and an ensuing rehabilitation period at the Wilhelmshöhe branch of the Vienna Josefstadt prison.        It follows from the documents in the file that the operation was scheduled for October 1995. However, the applicant refused to undergo the operation and filed a number of further requests for suspension of the execution of his sentence in order to have the operation and rehabilitation carried out in a hospital of his choice. He argued mainly that he lacked confidence in the doctors of the Graz Regional Hospital. Moreover, he claimed that he was unable to prepare himself for the operation while being imprisoned, that in particular the rehabilitation envisaged at the Wilhelmshöhe branch of the Vienna Josefstadt prison was unacceptable and that the courts should have heard a medical expert as regards the question of rehabilitation. The courts continued to refuse a suspension of the execution of the applicant's sentence. They mainly reaffirmed the reasoning given in the first set of proceedings. Further, they noted that the possibility of being operated at the Graz Regional Hospital remained open to the applicant. As regards rehabilitation, they expressed the view that its type and scope would have to be assessed by the doctors in charge after the operation. Further, S. 71 of the Execution of Sentences Act guaranteed that it would be carried out in a public hospital if that was necessary from a medical point of view. Nevertheless, the applicant continued to refuse the operation.        In these circumstances, the Commission finds that the authorities made appropriate arrangements for the applicant's medical treatment. However, this treatment could not be afforded to him on account of his own continuous refusal to be operated at the University Clinic of the Graz Regional Hospital. The fact that the applicant's choice of a hospital is limited appears as an ordinary restriction resulting from his imprisonment.        In conclusion, the Commission considers that the circumstances under which the applicant is detained including his opportunities to have access to medical treatment do not constitute treatment appearing to be in violation of Article 3 (Art. 3) of the Convention.        It follows that the application is manifestly ill-founded within the meaning of Article 27 para. 2 (Art. 27-2) of the Convention.        For these reasons, the Commission, unanimously,        DECLARES THE APPLICATION INADMISSIBLE.     M.F. BUQUICCHIO                                  J. LIDDY      Secretary                                     President to the First Chamber                          of the First Chamber