CEDH · CASELAW;DECISIONS;ADMISSIBILITY;ENG — 28 août 2012

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A.     The circumstances of the case 3.     The facts of the case, as submitted by the applicant, may be summarised as follows. 1.     Proceedings brought against the applicant in respect of property rights 4.     On 23 January 1997 C.N. brought proceedings against the applicant seeking to recover his property consisting of 2,600   sq.   m of land which the applicant had occupied. 5.     By a final judgment of 26 November 2002 the Suceava Court of Appeal allowed C.N.’s action in part and ordered the applicant to vacate 1,300   sq.   m of C.N.’s land. 6.     On 26 March 2003 a bailiff enforced the judgment of 26   November   2002 and C.N. was given possession of the land. 2.     Criminal proceedings brought against the applicant for contempt of court 7.     On an unspecified date C.N. brought criminal proceedings against the applicant for contempt of court in relation to the court judgment of 26   November 2002, on the basis of the fact that the applicant continued to plant crops on the 1,300   sq.   m of land. 8.     By a final judgment of 5 February 2004 the Rădăuţi District Court convicted the applicant of contempt of court and sentenced him to a suspended sentence of six months’ imprisonment. The court again ordered the applicant to vacate the 1,300   sq.   m of C.N.’s land. 9.     On 7 April 2005 a bailiff enforced the judgment of 5   February   2004 and restored C.N.’s possession of the land. 10.     On an unspecified date in 2005 C.N. brought a second set of criminal proceedings against the applicant for contempt of court in relation to the court judgment of 5   February 2004, as the applicant was continuing to plant crops on the 1,300   sq.   m of land. 11.     By a final judgment of 18 October 2006 the Suceava Court of Appeal convicted the applicant of contempt of court and imposed on him a criminal fine of 1,000 lei   (RON) (approximately 284   euros (EUR)). It also cancelled the suspension of the six ‑ month prison sentence the applicant had received on 5   February 2004 and ordered the applicant’s imprisonment for six months. Moreover, it awarded C.N. RON   1,284 (approximately EUR   363) in respect of civil damages. As regards the applicant’s claim that he had not been assisted by a lawyer during the criminal investigation and before the first ‑ instance court, the court held that although the applicant had been informed of his right to legal assistance as provided for by the applicable rules of criminal procedure, he had waived his right to a lawyer, stating that he would employ the services of a lawyer for the trial if he needed to. Moreover, the court held that in a case such as that involving the applicant, the domestic law did not require the mandatory appointment of a lawyer by the court. 12.     It does not appear from the evidence in the file that the applicant asked for a court ‑ appointed lawyer, or that he asked to be allowed to retain a lawyer of his own choice, either during the criminal investigation or before the first-instance court. 3.     The applicant’s detention, transport and medical treatment 13.     Between 21 February 2005 and 3 October 2006 the applicant was hospitalised in several hospitals, including the Rădăuţi and Suceava County Hospitals, where he was diagnosed and treated for hypertension and serious heart ‑ related conditions. He was recommended to rest and was prescribed antibiotics, aspirin and anticoagulants. 14.     On 19 October 2006 the Rădăuţi District Court ordered the applicant’s detention following the sentence imposed by the Suceava Court of Appeal on 18 October 2006. 15.     On 25 October 2006 the applicant was detained and taken to Suceava police station. He was 75 years old at the time. 16.     On 2 November 2006 the applicant was transferred to Botoşani Prison. (a)     The applicant 17.     On 3 November 2006 the applicant informed the prison guards that he felt ill, and he was taken to the Botoşani Prison doctor. The said doctor prescribed him some medication, which was brought to his cell every morning and evening. 18.     On 10 November 2006 he was transferred back into the custody of the Suceava police because he had been summoned to appear before the domestic courts in respect of criminal proceedings opened against him for destruction of property. Because of his worsening medical condition, he asked to be taken to a doctor, but his request was allegedly refused. On 17   November 2006 he was transferred back to Botoşani Prison, where he was placed in a cell with five other inmates. On an unspecified date one of the detainees started recounting stories of alleged rape incidents that had taken place in the prison, which scared the applicant and caused him to feel unwell. He was taken to the Botoşani Prison doctor and was provided with treatment for his condition. However, his state of health did not improve. 19.     On 2 December 2006 the applicant suffered a heart attack and was transferred to the Botoşani County Hospital, allegedly in the back of a car with a plank of wood for a seat. At the hospital he was given an injection and some medication, and was kept under observation for two days. 20.     As his medical condition did not improve, the doctor at the Botoşani County Hospital recommended that the applicant be transferred to Bucharest. 21.     On 4 December 2006 he was transferred to Bucharest by car, travelling for eleven hours over a distance of 500   km (from 10   a.m. to 9   p.m.). He was taken to the Jilava Prison Hospital, where he was left to wait in the car for half an hour. On the same date he was transferred to the C.C. Iliescu Cardiology Hospital in Bucharest because he could not be treated in Jilava. The applicant further claims that before leaving Jilava he lost consciousness. 22.     On 5 December 2006 the applicant’s diagnosis of acute myocardial infarction was confirmed and he underwent heart by ‑ pass surgery and was fitted with a pacemaker. 23.     On 11 December 2006 the applicant was discharged from the C.C. Iliescu Cardiology Hospital and transferred back to the Jilava Prison Hospital. 24.     Following his release from prison on 20 December 2006, the applicant was allegedly taken to hospital several times for urgent medical attention as a result of his slow recovery from the myocardial infarction and the subsequent surgery. He submitted four medical letters issued between February 2007 and 19 May 2008 concerning his medical condition. The letters were issued by the private practices of doctors B.L. and G.I., a cardiologist and a respiratory specialist respectively. The letters confirmed the applicant’s post-surgical diagnosis and prescribed medication. None of the letters contain any information indicating that urgent medical treatment or hospitalisation was required by the applicant. 25.     In a letter of 1 April 2009 (received by the Court on 6 April 2009) the applicant informed the Court for the first time that because of a lack of funds, the Jilava Prison Hospital could not provide him with Plavix, a medicine that he needed to take on a daily basis to help with the assimilation of his pacemaker and to prevent future heart attacks. He further stated that he had been asked to buy the drug himself. (b)     The Government 26.     On 27 October 2006 the applicant was examined in detention by a doctor. According to the entry on his medical chart for that day he was diagnosed with heart problems, inter alia. Moreover, on 3 and 22   November   2006 the applicant was examined by the Botoşani Prison doctor and was prescribed medicines for his condition, including aspirin, antibiotics, simvastatine and anticoagulants. 27.     On 10 November 2006 the domestic authorities approved the applicant’s request for a doctor’s visit in order to obtain a prescription for medicines. 28.     On 26 November 2006 the applicant underwent a medical examination in the Botoşani County Hospital. The medical note issued on the same date recorded that he had been provided with treatment for his condition and that he had been administered nitroglycerin. He was also recommended to rest. 29.     On 4 December 2006 the applicant was discharged from the Botoşani County Hospital. His discharge papers issued on the same day stated that he had been hospitalised for acute myocardial infarction, and recorded that he had been provided with medical treatment for his condition. The discharge papers also stated that the applicant’s condition was stable, and recommended his transfer to the Jilava Prison Hospital because the applicant’s condition required him to be fitted with a pacemaker, a medical procedure that could not be performed in the region. 30.     According to the information submitted by the Government, also supported by documents, the applicant was transferred from the Botoşani County Hospital to the Jilava Prison Hospital by ambulance on 4   December   2006. The ambulance left the Botoşani County Hospital at 12.20   p.m. and arrived at the Jilava Prison Hospital at 5.50   p.m. Because the Jilava Prison Hospital lacked the equipment required for the applicant’s treatment, at 7   p.m. on the same day he was transferred to the C.C. Iliescu Cardiology Hospital, where he arrived at 7.30   p.m. For the entire duration of his journey the applicant was accompanied by doctor L.M., a specialist in internal medicine, and by nurse L. He was transported on a stretcher, his condition was monitored and he was provided with oxygen and medication. He remained conscious and his condition was stable. 31.     On 11 December 2006 he was transferred to the Jilava Prison Hospital from the C.C. Iliescu Cardiology Hospital in Bucharest for monitoring and treatment. According to his discharge papers from the C.C. Iliescu Cardiology Hospital he had undergone heart surgery and angioplasty with stent placement, and was diagnosed with, inter alia , recent acute coronary syndrome, second- and third ‑ degree atrium ‑ ventricular block (type one, reversible), a high risk of severe arterial hypertension, class 3 cardio insufficiency, prostate adenoma, and acute kidney failure. He was recommended to rest and to follow a low ‑ sodium diet. Moreover, he was prescribed several medicines, including one capsule of Plavix per day for nine months, which was available free of charge for patients in his condition. 32.     During his hospitalisation in the Jilava Prison Hospital he was provided with the required medical treatment for his condition as prescribed by the C.C. Iliescu Cardiology Hospital, including the medicine Clopidogrel (Plavix), and his condition had improved by the time he was discharged from the Jilava Prison Hospital on 20 December 2006. 33.     Lastly, the applicant did not lodge any complaints in respect of the alleged inadequacy of the medical treatment received or of the transport conditions during his detention. 4.     Proceedings seeking his release on health grounds 34.     On 30 October 2006 the applicant retained the services of a lawyer and authorised him to bring proceedings before the domestic courts seeking his release from his custodial sentence on health grounds. 35.     On 1 November 2006 the applicant brought proceedings before the Suceava District Court seeking his release on account of his age and medical condition. 36.     On 3 November 2006 the applicant requested the court to bring forward the first hearing of his case scheduled from 6 December 2006, on account of his medical condition. 37.     By an interlocutory judgment of 6 November 2006, the Suceava District Court allowed the applicant’s action and scheduled the first hearing of his case for 13 November 2006. 38.     On 13 November 2006 the Suceava District Court raised of its own motion an objection in respect of its territorial jurisdiction, and declared the Rădăuţi District Court competent to deal with the applicant’s request for release on health grounds. It held that according to the applicable rules of criminal procedure only the first ‑ instance court which had sentenced the applicant, or the court having territorial jurisdiction over the place where the applicant was serving his prison sentence, could validly hear his application. And in the applicant’s case that was the Rădăuţi District Court that was competent on both counts. 39.     On 7 December 2006 the applicant’s action seeking release on health grounds was lodged before the Rădăuţi District Court. 40.     At a hearing on 12 December 2006, the Rădăuţi District Court ordered the Suceava Forensic Institute to produce an expert forensic report that would establish whether the applicant’s medical condition could be treated in a prison hospital. 41.     By a final judgment of 19 December 2006, the Rădăuţi District Court allowed the applicant’s action and ordered the discontinuation of the applicant’s sentence pending his recovery. It held that according to the expert forensic report produced by the Suceava Forensic Institute on 13   December 2006, his condition following surgery would require three months’ specialist medical care and a special diet which could not be provided by a prison hospital. 42.     On 20 December 2006 the applicant was released from prison. 43.     On 1 March 2007, following media coverage, the applicant received a Presidential pardon in respect of the remainder of his prison sentence. B.     Relevant domestic law 44.     The relevant provisions of Law no.   275/2006 on the Serving of Prison Sentences, in force at the time of the events in the instant case, as well as those 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. COMPLAINTS 45.     Invoking Article   3 of the Convention, the applicant complained that, taking his age and medical condition into account, he had been subjected to inhuman and degrading treatment during his imprisonment owing to a lack of adequate medical treatment, inadequate transport conditions, and the excessive length of the proceedings concerning his request for the execution of his prison sentence to be discontinued. 46.     Relying on Article   6 §   1 of the Convention, the applicant complained of the length of the proceedings concerning his request for release for medical reasons. Invoking the same Article of the Convention, the applicant complained that the proceedings which ended with the final judgment of 18   October   2006 had been unfair in so far as the courts had improperly assessed the evidence and misinterpreted the applicable legal provisions. 47.     Relying on Article   6 §   3   (c) of the Convention, the applicant complained of a breach of his right to defence in so far as he had not been assisted by a lawyer during the criminal investigation and before the first ‑ instance court in the second set of proceedings opened against him for contempt of court. THE LAW A.     Alleged violation of Article 3 of the Convention 48.     The applicant complained that, given his age and medical condition, he had been subjected to inhuman and degrading treatment during his imprisonment owing to a lack of adequate medical treatment, inadequate transport conditions and the length of proceedings concerning his request for the execution of his prison sentence to be discontinued. 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.” 49.     The Government raised two preliminary objections. Firstly, they argued that the applicant had failed to exhaust the available domestic remedies because he had not raised before the domestic authorities the complaint about the alleged lack of adequate medical treatment and the inappropriate transport conditions under Law no.   275/2006 concerning the serving of prison sentences. Secondly, they contended that the applicant’s complaint concerning the Jilava Prison Hospital’s lack of funds which forced him to obtain the prescribed medicine Plavix at his own expense had only been raised for the first time before the Court in his letter of 1   April   2009, and had therefore been lodged outside the six ‑ month time limit. 50.     The Government further argued that the Romanian authorities had provided the applicant with adequate transport conditions and adequate medical care for his condition. Moreover, when his condition had demanded, he had been promptly taken to hospital for heart surgery. Furthermore, the domestic courts had examined his request for temporary release on health grounds within a reasonable time and without undue delay. 51.     The applicant did not submit any observations in reply. 52.     The Court finds that it is not necessary to examine the Government’s preliminary objections because it considers that the applicant’s complaint is in any event inadmissible for the following reasons. 53.     The Court reiterates that Article   3, while it cannot be construed as laying down a general obligation to release detainees on health grounds, imposes an obligation on the State to protect the physical well ‑ being of persons deprived of their liberty. The Court accepts that the medical assistance available in prison may not always be at the same level as in the medical institutions for the general public. Nevertheless, the State must ensure that the health of detainees is adequately secured by, among other things, providing them with the appropriate medical assistance (see Kudła v.   Poland [GC], no.   30210/96, §   94, ECHR   2000 ‑ XI; Hurtado v.   Switzerland , 28 January 1994, Series   A no.   280 ‑ A, and Kalashnikov v.   Russia , no.   47095/99, §§   95 and 100, ECHR   2002 ‑ VI). 54.     The Court notes from the outset that the applicant was diagnosed and treated for hypertension and serious heart ‑ related conditions prior to his detention (see paragraph   13 above). Therefore, it is not convinced that the applicant’s medical condition was caused exclusively by his detention, or that the authorities can be held responsible for it (see, mutatis mutandis , Viorel Burzo v.   Romania , no.   75109/01 and 12639/02, §   81, 30 June 2009). 55.     With regard to the medical treatment received by the applicant, the Court notes that the authorities made efforts to meet the applicant’s health needs by regularly taking him to prison or civilian doctors or by hospitalising him in civilian and prison hospitals. Moreover, the Court observes that the applicant was prescribed medical treatment similar to that he had access to prior to his detention, and that he acknowledged that treatment was provided to him on a regular basis (see paragraphs 17 and 18   above). Furthermore, it does not appear from the evidence in the file that the required medical treatment was unavailable to him free of charge. 56.     While it is undisputed that the applicant suffered a heart attack during his detention, the Court notes that the authorities reacted promptly and transferred him to civilian hospitals, where he was provided further treatment and operated on. Although he had to spend part of his post ‑ surgical recovery in a prison hospital judged unfit for that purpose, the Court notes that it appears from the evidence in the file that the period in question was limited to a few days and that the applicant seems to have been provided with adequate treatment, given the fact that his post ‑ surgical condition had improved by the time of his release (see paragraph   32 above). Moreover, there is no evidence in the file to support the applicant’s claim that after his release from prison he was transferred to hospital several times for urgent medical attention as a result of his slow post ‑ surgical recovery. 57.     The Court also notes that the applicant did not submit any details that might indicate that the material conditions of his detention either in prison or in the prison hospitals were particularly difficult, or that they caused him any hardship other than that inherent in detention. 58.     In respect of the transport conditions, the Court notes that the applicant was transferred from Botoşani to Bucharest in an ambulance which appears from the evidence in the file to have been adequately equipped for transferring patients in his condition. He was accompanied for the entire duration of the journey by a specialist doctor and a nurse; his condition was monitored and he was provided with medication. While it is uncontested that the journey lasted for several hours, the Court notes that the applicant’s transfer was determined by objective reasons, in particular, he could not be provided with a pacemaker in the region he was detained in, and the journey did not affect his general state of health as his condition remained stable for the entire time of the transfer (see paragraph   30 above). 59.     The Court notes that the Government did not contradict the applicant’s statement that on 2 December 2006 he was transported to the Botoşani Prison hospital in the back of a car with a plank of wood for a seat. While it considers that it is reasonable to assume that the situation caused him discomfort, it appears from the evidence in the file that the incident was isolated and lasted only a short time. Moreover, there is no evidence that the applicant’s condition was aggravated by the said incident, or that it affected his recovery. 60.     With regard to the alleged failure of the domestic courts to examine the applicant’s request seeking to discontinue the serving of his prison sentence without undue delay, the Court notes that the fact that the examination of the applicant’s request for release on health grounds took a month and eighteen days was not due to the absence of an updated medical report that should have been submitted by the Forensic Institute (see, a   contrario , Aharon Schwarz, cited above, §   106). In this connection, the Court observes that the applicant lodged his request for release from prison with a court that lacked territorial jurisdiction for examining his case, which required the domestic courts to examine that issue prior to dealing with his request. 61.     Moreover, the Court does not discern any indication in the file that the domestic courts unduly delayed the proceedings, or that the courts failed to examine his request speedily, since his request was decided within one month and eighteen days and resulted in his release from prison (see, a   contrario , Aharon Schwarz , cited above, §   102). 62.     Having regard to the foregoing, the Court considers that this part of the applicant’s case is manifestly ill ‑ founded and must be rejected in accordance with Article   35 §§   3 and 4 of the Convention. 63.     In the light of the above, the Court does not consider it necessary to examine the applicant’s complaint in respect of the excessive length of the proceedings seeking his release on health grounds under Article   6 of the Convention also. B.     Other alleged violations of the Convention 64.     Relying on Article   6 §§   1 and 3   (c) of the Convention, the applicant complained that the proceedings which ended with the final judgment of 18   October 2006 had been unfair in so far as the courts had improperly assessed the evidence and misinterpreted the applicable legal provisions, and that his right to defence had been breached in so far as he had not been assisted by a lawyer during the criminal investigation and before the first ‑ instance court. 65.     The Court has examined these complaints as submitted by the applicant. However, having regard to all the material in its possession, and in so far as they fall within its jurisdiction, the Court finds that these complaints do not disclose any appearance of a violation of the rights and freedoms set out in the Convention or its Protocols. It follows that this part of the application must be rejected as manifestly ill ‑ founded, pursuant to Article   35 §§   3 and 4 of the Convention. For these reasons, the Court unanimously Declares the application inadmissible.   Santiago Quesada   Josep Casadevall   Registrar   President