CEDH · CASELAW;DECISIONS;ADMISSIBILITY;ENG — 28 septembre 2010

.s800EAC49 { font-size:12pt } .s523616E0 { margin-top:0pt; margin-bottom:12pt; text-align:center; font-size:14pt } .sBB9EE52A { font-family:Arial } .s8229ABDD { margin-top:0pt; margin-bottom:12pt; text-align:center } .s10950C61 { margin-top:0pt; margin-bottom:0pt; text-indent:14.2pt; text-align:justify } .s32563E28 { margin-top:0pt; margin-bottom:0pt } .sB9D5CABB { width:28.35pt; display:inline-block } .sA36B60A1 { font-family:Arial; font-style:italic } .s967D43C6 { margin-top:36pt; margin-bottom:12pt; text-align:justify; page-break-inside:avoid; page-break-after:avoid; font-size:14pt } .s9F223FEE { margin-top:18pt; margin-left:17.85pt; margin-bottom:12pt; text-indent:-17.85pt; text-align:justify; page-break-inside:avoid; page-break-after:avoid } .s3CA22BA { font-family:Arial; text-transform:uppercase } .s29100277 { font-family:Arial; font-weight:bold } .s25D4CC02 { margin-top:0pt; margin-bottom:0pt; text-indent:14.2pt; text-align:justify; font-size:11pt } .sC702907E { margin-top:12pt; margin-left:36.6pt; margin-bottom:6pt; text-indent:-15.05pt; text-align:justify; page-break-inside:avoid; page-break-after:avoid } .s9D48DD53 { margin-top:6pt; margin-left:21.25pt; margin-bottom:6pt; text-indent:7.1pt; text-align:justify; font-size:10pt } .s83BE5C30 { font-family:Arial; font-size:8pt; vertical-align:super } .s9DAED311 { width:4.99pt; text-indent:0pt; display:inline-block } .s88A92475 { margin-top:12pt; margin-bottom:0pt; text-indent:14.2pt; text-align:justify; page-break-inside:avoid; page-break-after:avoid } .sDD165512 { margin-top:12pt; margin-left:14.2pt; margin-bottom:0pt; text-align:justify } .s7CB9076 { margin-top:36pt; margin-bottom:0pt; page-break-inside:avoid; page-break-after:avoid } .sA5E34492 { width:18.86pt; display:inline-block } .sB2998F02 { width:154.72pt; display:inline-block } THIRD SECTION DECISION AS TO THE ADMISSIBILITY OF Application no. 16987/02 by Leons LOBANOVS against Latvia The European Court of Human Rights (Third Section), sitting on 28   September 2010 as a Chamber composed of:   Josep Casadevall, President,   Elisabet Fura,   Corneliu Bîrsan,   Alvina Gyulumyan,   Egbert Myjer,   Ineta Ziemele,   Ann Power, judges, and Santiago Quesada, Section Registrar , Having regard to the above application lodged on 4 April 2002, Having regard to the observations submitted by the respondent Government, Having regard to the fact that the applicant has failed to submit observations in reply, Having deliberated, decides as follows: THE FACTS 1.     The applicant, Mr Leons Lobanovs, is a Latvian national who was born in 1952 and lives in Daugavpils. 2.     The Latvian Government (“the Government”) were represented by their Agent, Mrs Inga Reine. I.     The circumstances of the case 3.     The facts of the case, as submitted by the parties, may be summarised as follows.   1. Alleged ill-treatment and investigation   4.     On 13 April 1994, the applicant was found guilty of aggravated infliction of bodily harm and sentenced to nine years' imprisonment. The applicant began to serve his sentence in Jēkabpils prison. 5.     On 11 December 1999, due to violations of the internal prison rules, the applicant was transferred from Jēkabpils prison to Grīva prison and on 11   May 2001 he was transferred to Daugavpils prison. 6.     According to the applicant, on 29 September 2001 in Daugavpils prison he had felt weak due to being on hunger strike, and had lain down on the floor. A prison guard had approached him and kicked him in the left knee once. A day later another prison guard kicked him in the left side four or five times. Afterwards, on 2 October 2001 the prison guards humiliated the applicant several times by lifting him up together with his bed and throwing it onto the floor. 7.     On 1 October 2001 the applicant complained to the prison doctor about permanent pain in his left knee allegedly caused by ill-treatment by a prison guard. According to the medical report the doctor detected a deformation in the joint of the applicant's left knee. It also stated that the knee was not swollen and the skin of the knee was of a normal colour. It was concluded that the deformation of the applicant's left knee was caused by chronic arthrosis. Following another medical examination on 2 October 2001 the applicant was diagnosed with inflammation of the left knee joint. 8.     On 26 October 2001 the applicant was transferred to the Central Prison Hospital and on the same day he was admitted to the surgical unit of the hospital, where his previous diagnosis was confirmed. 9.     On 29 October 2001 during a medical examination at the hospital the applicant complained of a swollen knee. He also stated that a month ago he had fallen on his left knee. 10.     On 10 November 2001 the applicant left the hospital after having received medical treatment and having refused to have his knee operated on. 11.     Meanwhile, on 2 November 2001 the applicant had applied to the Specialised Public Prosecutor's Office complaining that from 29 September to 2 October 2001 the Daugavpils prison guards had ill-treated him (see paragraph   6 above). He also complained to the Latvian Prison Administration about the circumstances of his transfer from Daugavpils prison to the Central Prison Hospital between 25   October and 27   October 2001, alleging that he had not been provided with nutrition during the transfer. 12.     On 6 November 2001 a prosecutor from the Specialised Public Prosecutor's Office met with the applicant in private and obtained statements from him. 13.     On 8 November 2001 the Specialised Public Prosecutor's Office ordered a forensic medical report on the applicant's knee injury. 14.     On 13 November 2001 the applicant underwent forensic medical tests. The medical expert's referred to the applicant's medical history by stating, inter alia , that in 1984 the applicant has complained about pain in spine and his right leg. In order to reach a conclusion the experts requested additional medical records from the Central Prison Hospital. 15.     On 11 December 2001 the Latvian Prison Administration dismissed the applicant's claim concerning the conditions of his transfer to the Central Prison Hospital. 16.     On 12 December 2001 the forensic medical expertise concluded that the swelling in the applicant's left knee was associated with chronic changes to the knee joints caused by deforming arthrosis and bursitis. 17.     On 13 December 2001 a prosecutor of the Specialised Public Prosecutor's Office decided not to initiate criminal proceedings regarding the alleged ill-treatment in Daugavpils prison. The decision was supported by the results of the expert report and the results of the internal investigation undertaken by the head of Daugavpils prison. According to the latter, on 29   September, 30 September and 2 October 2001 prison guards had inspected the cell without using any force against the applicant. The applicant did not appeal against the decision to a prosecutor of a higher rank. 18.     From 26 July to 10 August 2002 the applicant was repeatedly admitted to the Central Prison Hospital concerning his joint disease.   2. Alleged inference with the applicant's right to respect for his correspondence   19.     According to the applicant, on 4 June 2001 he complained to the Prosecutor General that the Grīva prison administration had confiscated complaints he had drafted to various State institutions. He also asked the Office of the Prosecutor to forward his letters, without specifying their contents, to the State Language Centre and the Minister of Justice. The letters to the latter authorities were in a sealed envelope attached to the letter addressed to the Prosecutor General. 20.     Following the applicant's inquiry on 9 July 2001 the Office of the Prosecutor General informed the applicant that it had not received his complaint of 4 June 2001. 21.     On 18 July 2001, naming the document “a copy of the letter of 4   July 2001”, the applicant sent to the Prosecutor General an identical complaint with attached sealed letters addressed to the Ministry of Justice and the State Language Centre. 22.     On 3 August 2001 the Specialized Prosecutor's Office asked the Grīva prison authority to examine the applicant's complaints, whereas the letters addressed to other State institutions were returned to the applicant informing him that they could be sent at his own expense directly to the recipients. 23.     On 17 August 2001 the Specialized Public Prosecutor's Office replied to the applicant on the merits of his complaint of 18 July 2001, which was allegedly the copy of the letter from 4 June 2001. 24.     On 22 April 2002 the applicant repeatedly asked the Prosecutor General to forward a sealed envelope to the Ministry of Justice. 25.     Following the applicant's inquiry on 3 July 2002 the Specialized Public Prosecutor's Office informed the applicant that it had not received his complaint of 22 April 2002. 26.     On 29 September and 14 October 2002 the Ministry of Justice received letters from the applicant. II.     Relevant domestic law The Sentence Enforcement Code 27.     Under section 50 of the code convicted persons have the right to write proposals, submissions and complaints to State institutions, public organisations and officials. Proposals, submissions and complaints of convicted persons shall be sent to the appropriate persons and decided in accordance with the procedures prescribed by law. Proposals, submissions and complaints addressed to the prosecutor shall not be monitored and shall be dispatched within twenty-four hours (as worded at the material time). COMPLAINTS 28.     The applicant complained under Article 3 of the Convention that the authorities of Daugavpils and Grīva prisons subjected him to ill-treatment. He further complained that as a consequence he had been scheduled for an operation, which was cancelled. 29.     The applicant further complained under Article 3 of the Convention that the authorities of Daugavpils and Grīva prisons did not send his complaints addressed to various national authorities, thus depriving him of the possibility to complain about the poor conditions of his detention and the ill-treatment. 30.     The applicant complained under Article 3 of the Convention about various socio-economic problems, in particular, that he could not receive unspecified social benefits and privatisation certificates ( privatizācijas sertifikāti ). He also complained that he had not been allowed to attend church in Daugavpils prison. THE LAW I.     Complaints under Article 3 of the Convention 1.     Alleged ill-treatment in Daugavpils prison 31.     The applicant complained under Article 3 of the Convention that the authorities of Daugavpils prison had ill-treated him, in particular, by using force (see paragraph 6 above) and failing to provide nutrition during his transfer to the Central Prison Hospital. Article 3 of the Convention provides: “No one shall be subjected to torture or to inhuman or degrading treatment or punishment.” 32.     As regards the applicant's allegation concerning use of force against him, the Government supplemented additional information in support of the initial argument that the applicant has not exhausted domestic remedies, in particular, that he has not availed himself of the right to appeal to a higher ranking prosecutor against the refusal to institute criminal proceedings in respect of the alleged ill-treatment. 33.     The Court reiterates that evidence of allegations of ill-treatment must be assessed according to the highest standard of proof, that is, 'beyond reasonable doubt', which may nevertheless also follow from the coexistence of sufficiently strong, clear and concordant inferences or of similar unrebutted presumptions of fact ( Labita v. Italy [GC], no. 26772/95, § 121, ECHR 2000 ‑ IV). 34.     The Court observes that the medical reports do not support the applicant's allegations. The medical reports from Daugavpils prison and the Central Prison Hospital reveal that the applicant's knee was deformed as a result of a chronic joint disease, and the same diagnosis was confirmed by an independent medical forensic expert report. Although at the time of lodging the application the applicant disputed the medical experts' conclusions by alleging that they referred to more than twenty year-old injuries, the report shows that the conclusion was reached after an examination of the applicant and his medical history. Besides, by raising this allegation the applicant himself admitted that he had been suffering from a joint disease at least since 1984 (see paragraph 14 above). 35.     The Court also takes note of the fact that the information provided by the applicant to the experts differs from his submissions to the Court (see paragraph 9 above). Besides, two days after the alleged ill-treatment the applicant's only complaint to the doctor was about a painful knee. Had the applicant been subjected to the ill-treatment he alleged, he would presumably have had more serious injuries. 36.     In the light of the above, the facts of the case do not disclose an appearance of a violation of Article 3. 37.     As regards the applicant's complaint that he had not been provided with nutrition during his transfer to the prison hospital between 25   October and 27   October 2001, the Government contested the facts he presented. The Government contended that the applicant's transfer from Daugavpils to the Central Prison Hospital commenced on 26 October 2001 and could not have taken more than four hours, and that on the same day he had been admitted to the Central Prison Hospital, where he received adequate nutrition. 38.     The Court reiterates that failure to provide nutrition even for short periods can lead to a violation of Article 3 (see Jeronovičs c. Lettonie , n o   547/02, § 39, 1 December 2009). In the present case, however, there is no evidence in support of the applicant's allegations. 39.     It follows that the complaints concerning ill-treatment in prison and failure to provide nutrition during transfer are manifestly ill-founded and must be rejected pursuant to Article 35 §§ 3 and 4 of the Convention. 2.     Investigation of the ill-treatment 40.     The Court reiterates that even if ill-treatment under Article 3 has not been established an applicant can nevertheless have an arguable claim with respect to the obligation of the State authorities to investigate the allegations ( Dolenec v. Croatia , no. 25282/06, § 150, 26 November 2009). 41.     The Government argued that the applicant had not exhausted domestic remedies (see paragraph 32 above). 42.     The Court notes that the above-mentioned refusal to initiate criminal proceedings was based on the conclusions of medical reports as well as on the internal investigation conducted by the Chief of Daugavpils prison, who concluded that there had been no ill-treatment. The latter could raise doubts as to the independence and quality of the investigation. Nevertheless, this could have been addressed in an appeal to a superior prosecutor by the applicant. 43.     Since no such appeal was lodged, the Court concludes that the applicant has failed to exhaust the domestic remedies and the complaint in this part should be rejected pursuant to Article 35 §§ 1 and 4 of the Convention. 3.   Alleged lack of medical treatment 44.     The applicant further complained under Article 3 that he had not received appropriate medical treatment in prison, in particular, that he was refused an operation on his knee. 45.     The Government contested the facts submitted by the applicant. It argued that he had not exhausted the domestic remedies by complaining about the standard of his medical treatment. The Government alternatively asserted that the complaint was inadmissible in that the applicant had himself refused to have his knee operated on. 46.     The applicant's medical reports reveal that from 26 October to 10   November 2001 he received treatment in the Central Prison Hospital where he refused to have his knee operated on, and that he was discharged from the hospital in a satisfactory condition. The applicant was repeatedly admitted to the Central Prison Hospital from 26 July to 10 August 2002 where he repeatedly refused to have his knee operated on because the operation was not urgent. 47.     Observing that the applicant has received regular medical treatment for his chronic illness and that the applicant has not availed himself of the right to comment on his medical records provided by the Government, this part of the application is therefore also manifestly ill-founded and must be rejected pursuant to Article 35 §§ 3 and 4 of the Convention. II.     Complaints under Article 8 of the Convention 48.     The applicant further complained under Article 3 of the Convention that the authorities of Daugavpils prison had failed to send his letters addressed to State authorities (see paragraphs 19-26 above). 49.     It may be recalled that the Court is free to attribute to the facts of the case a characterisation in law different from that given by the applicant. Thus the Court considers it more appropriate to examine the complaint under Article 8 of the Convention, which provides: “1.   Everyone has the right to respect for [...] his correspondence.   2.   There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others.” 50.     The Government raised the six-month rule with respect to the complaint that the Daugavpils prison authorities failed to dispatch the applicant's letter with annexes dated 4 June 2001 to the Prosecutor General. Alternatively, it argued that the applicant had in fact never sent the letter on the alleged date and that instead, the letter and its annexes were sent to the Prosecutor General on 18 July 2001 and the applicant was confused about the dates (see paragraph 21 above). 51.     Leaving aside the question whether the applicant submitted the letter to the prison authorities on 4 June or 18 July 2001, the Court shares the view that on 3 August 2001 the applicant was informed that the letters to State authorities other than the Prosecutor's Office could be sent by himself, therefore no circumstances existed which would interrupt the running of the six-month period, which expired on 3 February 2002 (contrast Hilton v.   United Kingdom , no. 12015/86, Commission decision of 6 July 1988). Therefore this part of the complaint was submitted out of time. 52.     Concerning the alleged failure of the Daugavpils prison authorities to dispatch the applicant's letter of 22 April 2002 addressed to the Prosecutor General asking him to forward the annexes of the letter to the Ministry of Justice, the Government raised doubts as to whether such a letter had existed at all. The Government asserted that in any event the Office of the Prosecutor was not authorized to forward the applicant's letters to other State institutions. 53.     The Court observes that pursuant to the national legislation the applicant had a right to address State authorities by sending correspondence directly to the institutions concerned (see the law part above). The applicant had been aware of the provision at least since 3 August 2001 when the Office of the Prosecutor notified him of it. It has to be noted that the applicant has not invoked any obstacles which had prevented him from sending the letters directly to the State authorities; moreover, later the same year the Ministry of Justice received several letters sent by the applicant directly from Daugavpils prison. 54.     It follows that the above complaint is inadmissible under Article   35   § 3 as manifestly ill-founded. III.     Other complaints 55.     The applicant also alleged violations of Article 3 of the Convention concerning various socio-economic problems, in particular, that he could not receive unspecified social benefits and privatisation certificates. He also complained that he was not allowed to attend church in Daugavpils prison. 56.     In the light of all the material in its possession, and in so far as the matters complained of are within its competence, the Court considers that this part of the application does not disclose any appearance of a violation of any of the above Articles of the Convention. It follows that these complaints are inadmissible under Article   35   § 3 as manifestly ill-founded and must be rejected pursuant to Article   35   §   4 of the Convention. For these reasons, the Court unanimously Declares the application inadmissible.   Santiago Quesada   Josep Casadevall Registrar President