CEDH · CASELAW;DECISIONS;ADMISSIBILITY;ENG — 11 mai 2010

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Zupančič,   Alvina Gyulumyan,   Ineta Ziemele,   Luis López Guerra,   Ann Power, judges, and Santiago Quesada, Section Registrar , Having regard to the above application lodged on 14 September 2005, Having regard to the observations submitted by the respondent Government and the observations in reply submitted by the applicant, Having deliberated, decides as follows: THE FACTS 1.     The applicant, Mr Rihards Ruža, is a Latvian national who was born in 1973 and is being held in custody in Daugavpils prison. He was represented before the Court by Ms I.   Znotiņa, a lawyer practising in Riga. The Latvian Government (“the Government”) were represented by their Agent, Ms I. Reine. A.     The circumstances of the case 2.     The facts of the case, as submitted by the parties, may be summarised as follows.   Criminal proceedings against the applicant   3.     On 26 October 2004 the applicant was arrested on suspicion of burglary. On 29 October 2004 he was remanded in custody. On 8 November 2004 a charge of burglary was brought against him. On 16 December 2004 the detention order was lifted and the applicant was released. 4.     On 13 January 2005 the applicant was arrested on suspicion of burglary and the following day he was remanded in custody. The applicant was placed in Daugavpils prison, which, at the time, had recently been converted into a remand centre (see paragraph 23 below). On 18   January 2005 a charge of murder was brought against the applicant. 5.     On 16 March 2005 charges of burglary and aggravated murder were brought against the applicant and, after the applicant had become acquainted with the case materials, a final bill of indictment was issued on 31 March 2005. 6.     On 12 May 2005 the Latgale Regional Court found the applicant guilty as charged and sentenced him to sixteen years' imprisonment. The applicant appealed against that judgment. His appeal was admitted on 22   June 2005. 7 .     The proceedings are currently pending and the next hearing before the appellate court is scheduled for 15 June 2010.   Applicant's state of health while at liberty   8.     On 17   July 2003 the applicant was released from prison, where he had been serving a sentence following another set of criminal proceedings. Soon after his release, on 30 July 2003, he was admitted to Daugavpils Regional Hospital, where he was diagnosed with chronic pancreatitis and gastritis. He was treated in that hospital for two days after which doctors recommended a course of outpatient treatment and advised him not to consume alcohol. He was also treated in that hospital from 24 to 30 August 2003. Doctors recommended a diet and prescribed Pangrol, a non-prescription drug used for pancreatic enzyme replacement therapy, and advised him not to consume alcohol. 9.   From 12 to 15 January 2004 he was treated for chronic pancreatitis at Daugavpils Regional Hospital. From 1 to 31 May 2004 he was again hospitalised. Among other illnesses, he was diagnosed with liver cirrhosis. He underwent several operations, including a laparotomy, and was prescribed antibiotics and anti-inflammatory drugs. Doctors recommended a course of outpatient treatment under the supervision of a general practitioner.   Applicant's state of health while in custody   10.     The applicant's medical records kept by the Prison Administration contain no reference to the applicant's state of health between 26 October 2004, when he was first arrested, and 8 November 2004, when it appears that he was first seen by a prison doctor in Daugavpils prison. On that date he was diagnosed with chronic pancreatitis. He also had his lungs scanned as a result of which bronchitis was discovered. He was also seen by prison doctors on 12   and 17 November 2004. 11.   On 26 January 2005 a prison doctor diagnosed him with liver cirrhosis and chronic pancreatitis. He was prescribed Pangrol, which he had to pay for himself. 12 .     On 18 February 2005 a prison doctor gave him Pangrol and prescribed a further two days' treatment of several medicines including pancreatin and Pangrol, which he also had to pay for himself. On 23   February 2005 a prison doctor noted that a previous course of therapy should be followed, while nutrition plan 4B, which encourages the use of white bread, should be followed for one month. On 25 February 2005 the applicant's condition deteriorated and on 4 March 2005 he was sent to Prison Hospital in Central prison in Rīga. 13 .     From 4 to 23 March 2005 the applicant was kept in Prison Hospital and was treated in relation to chronic pancreatitis, liver cirrhosis and chronic gastritis. While there, he received several courses of medication including medication for enzyme replacement therapy. Recommendations from doctors included the use of hepatoprotectors (Carsil and Essentiale) for a duration of one to one and a half months, twice a year. Carsil is a product of plant origin with hepatoprotective and anti-oxidative qualities; it is a non-prescription drug for additional therapy for chronic liver diseases, including liver cirrhosis. It is used for preventive purposes as well. 14 .     Upon his return to Daugavpils prison, on 29 March 2005 a prison doctor prescribed Carsil to the applicant. Subsequently, the applicant was prescribed pancreatin and Carsil on several occasions. In addition, nutrition plan 4B was prescribed to the applicant for September and December 2005. On one occasion, the applicant was advised to buy pancreatin, which he had to pay for himself. Overall, the applicant was examined by a prison doctor on twenty occasions in 2005 and different drugs were prescribed, including Carsil on at least seven occasions, pancreatin on at least four occasions and Pangrol on at least one occasion. In addition, on several occasions in 2005, the applicant's mother sent him pancreatin and Pangrol. 15 .     In 2006 the applicant's state of health continued to be examined on a regular basis. Overall, he was examined on nineteen occasions. Among other things, the doctor prescribed several medicines and advised the applicant not to smoke. On one occasion the doctor advised the applicant to buy pancreatin and, on another, the applicant was advised to buy hepatoprotectors. On at least three occasions Carsil was prescribed and on at least two occasions he received white bread for a month. In addition, from 3   to 17 May 2006 the applicant was treated in Prison Hospital and received further medication. 16.     In 2007 the applicant's state of health continued to be examined in Daugavpils prison where medication was prescribed on several occasions. On one occasion the applicant was prescribed to follow nutrition plan 4B and, on another, to receive white bread for a month.   Review of complaints by the applicant   17.     On 20 January 2006 a prosecutor from the Specialised Public Prosecutor's Office replied to the applicant that, pursuant to Cabinet Regulations no. 358 (1999), only primary medical assistance was provided free of charge to detainees; detained persons suffering from chronic illnesses had to pay for necessary medicine themselves. 18.     On 6 April 2006 the applicant complained to the Inspectorate of Quality Control for Medical Care and Working Capability (“MADEKKI”) that the medical assistance in Daugavpils prison was inadequate. In particular, he complained that, as a person suffering from chronic pancreatitis and liver cirrhosis, he had not received adequate medical treatment or nutrition plan 4B. 19.     Between 6 April and 9 May 2006 an expert examined the applicant's complaint in the course of administrative proceedings initiated by MADEKKI. She concluded as follows: (a) the applicant had been diagnosed with liver cirrhosis, chronic pancreatitis and chronic gastritis; (b) the applicant had been examined by prison doctors on a monthly basis in 2005, he had received adequate treatment in compliance with Cabinet Regulations no. 358 (1999); (c) he had been examined and treated in Prison Hospital in 2005; upon his release from hospital, it had been recommended that he use hepatoprotectors twice a year, which he had had to pay for himself; (d) there had been no grounds for prescribing nutrition plan 4B for the applicant in relation to his illnesses pursuant to Cabinet Regulations no. 155 (2002) even though a doctor had prescribed it to him on two occasions; (e) the applicant had also been placed in the Prison Hospital in May 2006 in order to carry out medical analyses and examinations necessary for confirming the diagnoses. 20 .     On 10 May 2006 MADEKKI decided to terminate the administrative proceedings on the basis of the expert's conclusions and concluded that no breaches in relation to the applicant's medical care had taken place. The applicant did not appeal against that decision. 21.     On 22 September 2006 the Prison Administration replied to the applicant that he had received nutrition in accordance with applicable domestic rules contained in Cabinet Regulations no. 155 (2002) and in Cabinet Regulations no. 339 (2002). Those regulations had been drawn up in co-operation with the Latvian Nutrition Centre and ensure sufficient nutrition. B.     Relevant international material and domestic law 22 .     On 10 May 2005, following its second periodic visit to Latvia, which had taken place from 25 September to 4   October 2002, the European Committee for the Prevention of Torture and Inhuman and Degrading Treatment or Punishment (“CPT”) published its report. The CPT had made a full visit to Daugavpils prison and noted the following: “66. Daugavpils Prison, which was built in 1861 in the city centre, is a closed prison for male prisoners (sentenced and on remand). Its official capacity had recently been increased from 543 to 800 inmates. At the time of the visit, the establishment was holding 762 prisoners, of whom 310 were sentenced and 443 on remand (including 24 juveniles). In addition, nine sentenced prisoners, held in a semi-open regime, were assigned to work in the establishment. ... 111. At Daugavpils Prison, the health care staff included three full-time doctors (general practitioner, narcologist and psychiatrist/narcologist) and three part-time doctors (general practitioner, dentist and surgeon), as well as two full-time feldshers and three nurses (including one part-time). However, the establishment did not have a psychologist. Health care staff were present on working days between 8h00 and 21h00, and on weekends between 9h00 and 17h00. Each shift comprised one doctor, one nurse and one feldsher. For the rest of the time, a prisoner, who was working as an auxiliary within the health care unit, made an initial medical assessment of fellow inmates and then called the ambulance, if needed. On occasion, the Head Doctor was also called in outside working hours. The CPT is seriously concerned about the absence of qualified health care staff at night in an establishment which accommodates almost 800 prisoners and which, in addition, has an infirmary with in-patients. Further, to entrust a prisoner with the medical examination of fellow inmates is totally unacceptable. ... 116.   At Daugavpils Prison , medical screening of newly-arrived prisoners was always performed by a doctor within 24 hours of admission. Blood tests (in particular for HIV and syphilis) were carried out with the prisoner's consent, and a fluorogramme was organised. Medical record cards for each prisoner were well-kept. Medical records were sought from a prisoner's previous doctor, if requested. ... 119.     At Daugavpils Prison , the delegation gained a generally favourable impression of the quality of health care provided to prisoners. ... 120.   In both establishments visited , the delegation received a number of complaints from prisoners about access to medical treatment (especially regarding dental care). As in 1999, dental care was limited to emergency treatment and extractions ( cf. paragraph 131 of the report on the 1999 visit). The CPT reiterates its recommendation that the Latvian authorities take steps to provide appropriate medical treatment - including conservative dental care - to all prisoners in Latvian prisons; this treatment should be free of charge for those prisoners who are not in a position to pay for it. ” 23 .       On 13 March 2008, following its ad hoc visit to Latvia, which had taken place from 5 to 12   May 2004, that is to say seven months prior to the applicant being placed in Daugavpils prison, the CPT published its report. The CPT had visited Daugavpils prison and made the following remarks: “38. All establishments visited have already been described in paragraph 66 of the report on the 2002 visit. The general descriptions contained in that report still remain valid. Daugavpils Prison had recently been formally transformed into a remand institution, although it was still accommodating sentenced prisoners as well. Its official capacity had been reduced from 800 to 543 places (including 43 juveniles). At the time of the 2004 visit, the establishment was accommodating 426 inmates, of whom 101 were sentenced and 314 on remand (including 29 juveniles). ... 65. At Daugavpils Prison, the delegation observed some improvements to the health-care services provided. By way of example, there were now four well-equipped quarantine rooms and medical confidentiality was respected. However, the CPT noted with concern that not all newly-arrived prisoners were medically screened upon admission. The lack of psychologists and a psychiatrist also constituted a serious shortcoming. Further, there was still no qualified health-care staff present at night.” 24.     The relevant provision of the Law on Medical Treatment ( Ārstniecības likums ), in force at the material time, reads: Section 10 “The quality of professional health care and work disability expert examinations in medical treatment institutions shall be controlled by the Inspectorate of Quality Control for Medical Care and Working Capability ....”   25.     Cabinet Regulations no. 358 (1999), in force at the material time and effective until 28 March 2007, provided as follows: “2. Convicted persons shall receive free of charge the minimum standard of health care in accordance with the amount established by the Cabinet of Ministers. In addition, the Prison Administration, within its budgetary means, shall provide to convicted persons: 2.1. primary, secondary and (in part) tertiary medical care; 2.2. emergency dental care; 2.3. medical examinations; 2.4. preventive and anti-epidemic measures; 2.5. medication and injections prescribed by a doctor of the institution; 2.6. medical accessories. 3. Detained persons shall receive medical care in accordance with Article 2 of these regulations, excluding planned in-patient treatment ... Detained persons shall be sent to receive in-patient treatment only when acute circumstances are present.   26.     Cabinet Regulations No. 339 (2002), in force at the material time and effective until 20 June 2008, lay down nutrition guidelines for detainees held in pre-trial detention facilities. It provides that detainees who are ill shall receive nutrition plan 4A. More specifically, detainees diagnosed with certain conditions, for example those who are HIV-positive, shall receive nutrition plan 4B. COMPLAINTS 27.   The applicant complained, without invoking any Article of the Convention, about the lack of medical assistance in Daugavpils prison. 28.   The applicant alleged that the criminal proceedings against him had been unfair. 29.     In August and September 2008 the applicant lodged new complaints about the length of his pre-trial detention and the length of the criminal proceedings against him. He also complained about the evaluation of evidence. THE LAW I. SCOPE OF THE CASE 30.     The case was communicated to the Government on 4 May 2007 under Articles 3 and 13 of the Convention. The Court notes that, after communication, the applicant introduced a number of new complaints in essence under Articles 5 § 3 and 6 § 1 of the Convention. As it has decided in previous cases, the Court need not rule on complaints raised after communication of an application to the Government (see Vigovskyy v. Ukraine , no.   42318/02, §   14, 20   December 2005; Piryanik v.   Ukraine , no.   75788/01, §   20, 19 April 2005; and Nuray Şen v. Turkey (no. 2) , no.   25354/94, § 200, 30 March 2004). 31.     Given that those complaints were not raised before communication of the present application, they are not part of the case referred to the Court. However, the applicant has the opportunity to lodge a new application in respect of those complaints (see Dimitriu and Dumitrache v. Romania , no.   35823/03, § 24, 20 January 2009). II. ADMISSIBILITY 32.     The applicant, without relying on any Article of the Convention, submitted that he had not received adequate medical assistance in Daugavpils prison. Since the Court is master of the characterisation to be given in law to the facts of the case (see Powell and Rayner v. the United Kingdom , 21 February 1990, § 29, Series A no. 172, Guerra and Others v. Italy , 19 February 1998, § 44, Reports of Judgments and Decisions 1998 ‑ I), it considers that the applicant's complaint falls to be examined under Article   3 of the Convention, which reads as follows: “No one shall be subjected to torture or to inhuman or degrading treatment or punishment.” 33.     The Government submitted that this complaint should be dismissed for non-exhaustion of domestic remedies because the applicant had not complained about the decision of 10 May 2006 (see paragraph 20 above) to the Head of MADEKKI and then to an administrative court. The Government were of the view that such a remedy had been established by law and had been available in practise. 34.     The applicant disagreed. He submitted that the remedy had not been accessible to detainees who lacked financial means. In order to have disputed the 10 May 2006 decision, it would have been necessary for him to have paid to send a letter to the Head of MADEKKI, which he could never have afforded to do. 35.     The Court will not examine the arguments put forward by the parties in relation to domestic remedies because the complaint is inadmissible for the reasons mentioned below. 36.     The Government argued that the applicant had received necessary medical examinations and medical treatment. They did not consider that the fact that the applicant had not received certain drugs free of charge was tantamount to a violation of Article 3 of the Convention. The Government submitted a substantial amount of information about the applicant's medical examination and health status in Daugavpils prison and explained the medical treatment he had received. They noted that the drugs, Carsil and Essentiale, were supplementary medicines that were not included in the list of medicines the purchase of which the State reimburses. 37.     The applicant maintained his complaint. He submitted that the medication which had been prescribed to him was conservative, primitive and insufficient and had not been adequate for his condition. The applicant considered that he had not received adequate medical treatment and necessary medication free of charge. 38.     The Court reiterates that, according to its case-law, 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 by, among other things, providing him with the requisite medical assistance (see Kudła v. Poland [GC], no. 30210/96, § 94, ECHR 2000 ‑ XI, Paladi v. Moldova [GC], no. 39806/05, § 71, ECHR 2009 ‑ ...). 39.     Turning to the circumstances of the present case, the Court notes that the applicant suffers from chronic pancreatitis, gastritis and liver cirrhosis. His dissatisfaction with the medical assistance provided in detention appears to be limited, however, to the unavailability of certain free of charge medication in accordance with domestic law. In that regard the Court reiterates that its task is not to rule on legislation in abstracto and it does not therefore express a view as to the general compatibility of the domestic system and practice of health care in prisons with the Convention ( see, mutatis mutandis, Silver and Others v. the United Kingdom , 25 March 1983, § 79, Series A no. 61; and, more recently, Nikolova v. Bulgaria [GC], no.   31195/96, § 60, ECHR 1999 ‑ II). The Court must examine whether the practical implementation of the domestic law in the applicant's case was in compliance with the Convention. 40.     The Court further notes that it does not transpire from the medical documents submitted to it that the applicant's conditions were of such a nature as to require constant medical supervision, in the absence of which he would face major health risks (see, a contrario, Paladi v. Moldova [GC], no. 39806/05, § 72, ECHR 2009 ‑ ...). While in detention in Daugavpils prison the applicant was regularly in contact with medical staff who examined him. On a number of occasions various drugs were prescribed and administered to him, including, at times, Pangrol, pancreatin and Carsil (see paragraphs 13-15 above). The applicant did not submit that he had not received the prescribed medication. Nor did he contest the accuracy of the medical records kept by the Prison Administration and submitted by the Government (see, a contrario , Hummatov v. Azerbaijan , nos. 9852/03 and 13413/04, § 117, 29   November 2007). 41.     Likewise, it does not appear from the medical documents that the applicant's medical condition required his transfer to a hospital specialising in certain kinds of treatment (see , a contrario, Aleksanyan v. Russia , no.   46468/06, § 156, 22 December 2008). Moreover, when the applicant's heath deteriorated, he was transferred to Prison Hospital for a more detailed examination and treatment on two occasions in 2005 and 2006 (see paragraphs 13-15 above). 42.     Therefore, the Court is unable to conclude that the national authorities did not ensure proper medical supervision of the applicant's condition. The Court notes that the applicant failed to explain in a detailed and convincing manner why he considered that the medical treatment he received was inadequate or in any other way in breach of the guarantees provided for in Article 3 of the Convention. 43.     It follows that this part of the application is manifestly ill-founded and must be rejected in accordance with Article 35 §§ 3 and 4 of the Convention. 44.     Accordingly, no separate issues under Article 13 of the Convention can be said to arise. 45.     The applicant also complained that the criminal proceedings had been unfair. The relevant provision, Article 6 § 1 of the Convention, reads as follows: “In the determination of ... any criminal charge against him, everyone is entitled to a fair ... hearing ... by [a] ... tribunal ...” 46.     The Court considers that this complaint is premature because the criminal proceedings against the applicant are currently pending (see paragraph 7 above). 47.     It follows that this part of the application must be rejected under Article   35 §§   1 and   4 of the Convention for non-exhaustion of domestic remedies. For these reasons, the Court unanimously Declares the application inadmissible.   Santiago Quesada   Josep Casadevall   Registrar   President