CEDH · CASELAW;JUDGMENTS;COMMITTEE;ENG — 16 juillet 2020

.s800EAC49 { font-size:12pt } .sFE10DC93 { margin-top:0pt; margin-bottom:0pt; text-align:center } .sBB9EE52A { font-family:Arial } .s339D85E6 { margin-top:0pt; margin-bottom:14pt; text-align:center; page-break-inside:avoid; page-break-after:avoid } .s665E407E { margin-top:66pt; margin-bottom:14pt; text-align:center; page-break-inside:avoid; page-break-after:avoid } .s29100277 { font-family:Arial; font-weight:bold } .s34DFC730 { margin-top:0pt; margin-bottom:0pt; text-align:center; page-break-inside:avoid; page-break-after:avoid } .sA36B60A1 { font-family:Arial; font-style:italic } .s10950C61 { margin-top:0pt; margin-bottom:0pt; text-indent:14.2pt; text-align:justify } .s2E932ED2 { margin-top:0pt; margin-bottom:0pt; font-size:11pt } .s32563E28 { margin-top:0pt; margin-bottom:0pt } .s4ACA9207 { page-break-before:always; clear:both; mso-break-type:section-break } .s9793A85B { margin-top:0pt; margin-bottom:0pt; text-indent:14.2pt } .sB9D5CABB { width:28.35pt; display:inline-block } .s58699FB5 { margin-top:14pt; margin-bottom:12pt; page-break-inside:avoid; page-break-after:avoid; font-size:14pt } .s3CA22BA { font-family:Arial; text-transform:uppercase } .s6B505E72 { margin:0pt; padding-left:0pt } .s5C381674 { margin-top:14pt; margin-left:17.85pt; margin-bottom:12pt; text-indent:-17.85pt; page-break-inside:avoid; page-break-after:avoid; font-family:Arial; text-transform:uppercase; list-style-position:inside } .s743F3A55 { margin-right:0pt; margin-left:0pt; padding-left:0pt } .s37839E0D { margin-left:10.75pt; margin-bottom:12pt; text-indent:0pt; page-break-inside:avoid; page-break-after:avoid; padding-left:0.6pt; font-weight:bold; text-transform:none } .sDAD2B73A { margin-top:14pt; margin-left:28.6pt; margin-bottom:12pt; page-break-inside:avoid; page-break-after:avoid; padding-left:0.6pt; font-family:Arial; font-weight:bold } .s76334B44 { margin-top:14pt; margin-left:36.55pt; margin-bottom:6pt; page-break-inside:avoid; page-break-after:avoid; font-family:Arial; font-style:italic } .s9A177BD5 { margin-top:14pt; margin-left:17.85pt; margin-bottom:12pt; page-break-inside:avoid; page-break-after:avoid; font-family:Arial; text-transform:uppercase } .sAA8D330 { margin-top:14pt; margin-left:17.85pt; margin-bottom:12pt; 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 } .s22BBE609 { margin-left:7.35pt; margin-bottom:6pt; text-align:justify; page-break-inside:avoid; page-break-after:avoid; font-weight:normal; font-style:italic } .sD0682254 { margin-top:0pt; margin-left:48.75pt; margin-bottom:6pt; text-indent:-17pt; text-align:justify; page-break-inside:avoid; page-break-after:avoid; font-size:10pt } .s30C8A987 { width:4.78pt; font:7pt 'Times New Roman'; display:inline-block } .sB2ED4664 { margin-top:14pt; margin-left:48.75pt; margin-bottom:6pt; text-indent:-17pt; text-align:justify; page-break-inside:avoid; page-break-after:avoid; font-size:10pt } .s4E0353E8 { width:4.23pt; font:7pt 'Times New Roman'; display:inline-block } .sF7610474 { margin-top:14pt; margin-left:36.55pt; margin-bottom:6pt; text-align:justify; page-break-inside:avoid; page-break-after:avoid; font-family:Arial; font-style:italic } .s71EEDCF9 { margin-top:0pt; margin-left:48.75pt; margin-bottom:6pt; text-indent:-17pt; page-break-inside:avoid; page-break-after:avoid; font-size:10pt } .sC79167A { margin-top:14pt; margin-left:48.75pt; margin-bottom:6pt; text-indent:-17pt; page-break-inside:avoid; page-break-after:avoid; font-size:10pt } .s2571CC02 { margin-top:0pt; margin-bottom:0pt; text-indent:14.2pt; text-align:justify; font-size:14pt } .s4B4B41EE { font-family:Arial; font-size:12pt } .s3561545 { font-family:Arial; font-weight:bold; color:#333333 } .sD11CFAB7 { margin-top:14pt; margin-left:15.01pt; margin-bottom:3pt; text-align:justify; padding-left:1.99pt; font-family:Arial } .sFBC99493 { font-style:italic } .s2D9C6089 { margin-top:12pt; margin-bottom:12pt; text-indent:14.2pt; text-align:justify; page-break-inside:avoid; page-break-after:avoid } .s69DCC830 { margin-top:36pt; margin-bottom:0pt } .s4D915BA7 { width:6.88pt; display:inline-block } .s5C40C215 { width:199.11pt; display:inline-block } .sA2E62387 { width:204.97pt; display:inline-block }       FOURTH SECTION CASE OF MIHĂILESCU v. ROMANIA (Application no. 50702/17)         JUDGMENT   STRASBOURG 16 July 2020       This judgment is final but it may be subject to editorial revision.   In the case of Mihăilescu v. Romania, The European Court of Human Rights (Fourth Section), sitting as a Committee composed of:   Faris Vehabović, President,   Iulia Antoanella Motoc,   Carlo Ranzoni, judges, and Ilse Freiwirth, Deputy Section Registrar, Having regard to: application no.   50702/17 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   Gabi-Ainăld Mihăilescu (“the applicant”), on 21 August 2017; the decision to give notice of the application to the Romanian Government (“the Government”); the parties’ observations; Having deliberated in private on 23 June 2020, Delivers the following judgment, which was adopted on that date: INTRODUCTION 1.     The case concerns the applicant’s complaints concerning the alleged lack of adequate medical treatment and, in particular, dental care he received while in detention. THE FACTS 2.     The applicant was born in 1971 and lives in Bacău. 3.     The applicant was granted leave to present his own case under Rule   36   §   2 in fine of the Rules of Court. 4.     The Government were represented by their Agent, most recently Ms   O.   Ezer, of the Ministry of Foreign Affairs. 5.     The facts of the case, as submitted by the parties, may be summarised as follows. The applicant’s health 6 .     On 29 October 2013 a medical committee issued a certificate attesting that the applicant had been classified as a person with a permanent, severe physical disability on account of his visual impairment. The medical commission granted the applicant the right to a personal care assistant (for further details, see Mihăilescu v. Romania [Committee], no.   11220/14, 14   February 2017, and Mihăilescu v. Romania [Committee], no.   72608/14, 24   September 2019). The applicant also suffers from various other medical disorders, including coronary heart disease and hepatic steatosis. The applicant’s detention 7 .     In 2012 the applicant was convicted of human trafficking. He was sentenced to ten years’ imprisonment and sent to Bacău Prison. 8 .     The medical report drawn up upon the applicant’s incarceration did not refer to the dentition model the applicant had at the time, allegedly for lack of appropriate staff. 9.     The applicant served his prison sentence in Iaşi, Bacău, Vaslui and Găeşti prisons. He transited through several other prisons in order to take part in judicial proceedings and for medical reasons. 10.     On 26 September 2018 he was released on parole after serving six years of his sentence. 11.     On 24 July 2019 the applicant was arrested under suspicion of having committed deception and placed firstly in Bacău Detention Centre and subsequently in Bacău Prison. On 13 December 2019 he was released from prison. Dental treatment in detention The applicant’s account 12.     The applicant submitted that throughout his detention, the medical attention he received for his significant dental problems had been completely inadequate. He claimed that his teeth had been extracted without any further investigation or proposal of alternative treatment, and that this had happened only after he had repeatedly insisted that he should be examined and receive treatment. 13 .     He further argued that he had submitted a request to the prison authorities to have a dental prosthesis prescribed, for which he had expressed his willingness to pay the fees; although his request had been granted, it had never been implemented. The applicant did not submit any document in support of this allegation. The Government’s account 14 .     The Government submitted that in general the applicant had not followed the medical recommendations he had received. They argued that his complaints referring to the alleged lack of adequate dental care were not aimed at obtaining better care, but as a way of justifying a claim for compensation. 15.     Relying on the applicant’s medical file, the Government submitted details about the dental treatment he had received while in detention, as described below. Vaslui Prison 16 .     The applicant had not made any requests for dental examinations until 6 March 2015, when he had a cavity treated and filled. On 28   May 2015 the applicant had an appointment with the dentist but in the end refused to be examined; lastly, on 16 June and 8 July 2015 he made requests for copies of his medical file, which were duly granted. Iaşi Prison 17.     Besides the treatment described in the domestic proceedings brought by the applicant before the post-sentencing judge (see paragraph 23 below), while in Iaşi Prison he had also been seen by the dentist on the following occasions. 18 .     On 27 July 2017 the applicant refused to have a fractured root extracted, claiming that he was due to go on one day’s prison leave ( permisie ) the following day. On 6 September 2017 he was diagnosed with acute pulpitis and was given painkillers; on 20 September 2017 he had a fractured root removed and was given medication; on 1 November 2017 he underwent an extraction of a fractured root and received medication; on 7   December 2017 he was diagnosed with acute pulpitis, for which painkillers were prescribed; on 20 December 2017 he had a fractured root extracted and received medication for it. On 3 May 2018 he underwent a fractured root extraction and received medication; on 4 May 2018 he went for an examination following the extraction and good progress was noted. Lastly, on 12 July 2018, he was diagnosed with acute pulpitis, for which he received painkillers. Găeşti Prison 19 .     On 11 June 2018 the applicant’s dentition model was drawn up. The report noted that the applicant was diagnosed with partial edentulism on the frontal maxilla (where seven teeth were missing) and on the lateral side of the mandible (where four teeth were missing). It further noted the existence of two fractured roots, one tooth cavity and one filling. 20 .     On 4 September 2018 the applicant gave his written consent to have one tooth extracted; on 8 September 2018 he was diagnosed with a complication from a tooth cavity, for which an X-ray was recommended. Application before the Post-sentencing judge concerning lack of adequate dental care 21.     On 10 July 2017 the applicant lodged a complaint with the post ‑ sentencing judge, pursuant to Article 56 of Law no. 254/2013 (see paragraph   27 below), complaining that he had not received adequate medical treatment for his dental problems. He alleged that he had suffered excruciating pain because he had not been examined in good time by the dentist and that such failure to act amounted to ill-treatment. 22.     The Iaşi Prison authorities submitted that since 19 September 2016, when a dentist had been hired to work in the prison, the applicant had been examined eight times for his dental problems, as follows. 23 .     On 29 September, and 6 and 13 October 2016 he received medication for painful dental pulp; on 14 October he received medication for a chronic periodontal disease; on 17 October he underwent an extraction; on 19 January and 24 May 2017 he underwent extractions of fractured roots and received appropriate medication. On 14 July 2017 he was examined for a fractured root and was recommended to return to the dental unit for an extraction, within working hours of the practice, namely between 2 and 3 p.m. daily, or, if the dentist was not present, to present himself to the medical unit. 24.     The applicant submitted that he had been scheduled for the extraction on 19 July but that that appointment had not been kept. 25 .     On 25 July 2017 the post-sentencing judge allowed the applicant’s claims. He found that the applicant had been suffering with dental problems from at least 2016; even if he had been examined by a dentist eight times, the treatment he had received was more symptomatic rather than coordinated and effective. There was no evidence to show whether there had been any follow-up care, whether any other investigative acts were needed or whether the applicant’s dental problems had been alleviated. The fact that the applicant had been treated several times, at long intervals, for the same problem of fractured roots proved that according to the domestic law, namely Article 71 § 2 of Law no. 254/2013 (see paragraph 28 below), he had not received appropriate medical assistance. 26.     The judge further held that even after the applicant had lodged his complaint, his request to be examined had not been appropriately taken into consideration in so far as he still did not have an appointment with the dentist. The prison authorities needed therefore to ensure that the applicant’s right to adequate medical assistance in relation to his dental problems was respected. RELEVANT LEGAL FRAMEWORK 27 .     Article 56 of Law no. 254/2013 on the serving of prison sentences, which entered into force on 1 February 2014, provides that detainees may complain to a post-sentencing judge about measures taken by the prison authorities in respect of their rights within ten days of becoming aware of such measures. The judge’s decision may be challenged before the domestic courts within five days of the detainee being notified of the decision. 28 .     Article 71 § 2 of the law provides that medical assistance, treatment and care in prison were to be provided upon request or whenever necessary, free of charge, as provided by the law, and by qualified staff. THE LAW ALLEGED VIOLATION OF ARTICLE 3 OF THE CONVENTION 29.     The applicant complained that his significant dental health problems had been inadequately cared for in detention, in breach of Article 3 of the Convention, which reads as follows: “No one shall be subjected to torture or to inhuman or degrading treatment or punishment.” Admissibility 30.     The Court notes that this complaint is neither manifestly ill-founded nor inadmissible on any other grounds listed in Article 35 of the Convention. It must therefore be declared admissible. Merits Submissions by the parties (a)    The applicant 31.     The applicant submitted that he had suffered from toothache and other associated aches and pains and that, throughout his detention, he had never been appropriately taken care of and had suffered pain for a long time. 32.     The lack of adequate dental care had led to the situation where, being almost 50 years of age, he was already partially toothless, with eleven teeth missing (see paragraph 19 above). (b)    The Government 33 .     With respect to the dental care available to the applicant, the Government submitted that he had been examined and diagnosed, and had undergone treatment such as extractions, fillings and dental pulp surgery on numerous occasions. On all those occasions he had also received appropriate treatment with antibiotics and painkillers. 34 .     The Government also submitted that according to the applicant’s medical records, he had been “therapeutically disobedient”, in that he had not followed doctors’ recommendations, as shown by the fact that he had refused an extraction (see paragraph 18 above), had not maintained good oral hygiene and had refused to sign after he had been seen, explaining that he had poor eyesight. 35.     They concluded that in spite of the applicant’s lack of cooperation with the medical staff, his dental problems had still been reasonably cared for in prison, as revealed by the numerous medical documents in the file, which proved that the authorities had adequately responded to all the applicant’s medical needs in relation to his teeth. The Court’s assessment (a)    General principles 36.     The relevant general principles concerning the adequacy of medical treatment in prisons have been summarised by the Court in Blokhin v.   Russia ([GC], no. 47152/06, §§ 135-40, 23 March 2016, with further references therein; see also Mikalauskas v. Malta , no. 4458/10, §§   62-63, 23   July 2013, and Drăgan v. Romania , no. 65158/09, §§ 82-85, 2   February 2016). 37.     In this connection, the “adequacy” of medical assistance remains the most difficult element to determine. The Court reiterates that the mere fact that a detainee is seen by a doctor and prescribed a certain form of treatment cannot automatically lead to the conclusion that the medical assistance was adequate. The authorities must also ensure that a comprehensive record is kept concerning the detainee’s state of health and his or her treatment while in detention, that diagnosis and care are prompt and accurate, and that, where necessitated by the nature of a medical condition, supervision is regular and systematic and involves a comprehensive therapeutic strategy aimed at adequately treating the detainee’s health problems or preventing their aggravation, rather than addressing them on a symptomatic basis. The authorities must also show that the necessary conditions were created for the prescribed treatment to be actually followed through. Furthermore, medical treatment provided within prison facilities must be appropriate, that is, at a level comparable to that which the State authorities have committed themselves to provide to the population as a whole. Nevertheless, this does not mean that every detainee must be guaranteed the same level of medical treatment that is available in the best health establishments outside prison facilities. On the whole, the Court reserves sufficient flexibility in defining the required standard of health care, deciding it on a case-by-case basis. That standard should be “compatible with the human dignity” of a detainee, but should also take into account “the practical demands of imprisonment” (see Blokhin , cited above, §§ 137-38 and all the references cited therein). (b)    Application of these principles to the present case 38.     The Court notes that the applicant suffered from various dental problems, such as pulpitis and chronic periodontitis (see paragraph   23   above), which have led to his being partially toothless and which have certainly affected his everyday life. Therefore he could have experienced considerable anxiety as to whether the medical care provided to him was adequate. 39.     In that connection , the Court cannot but point to a few regrettable shortcomings in the applicant’s medical treatment, such as, for instance, the authorities’ failure to establish his dentition model upon his incarceration (see paragraph 8 above), or the fact that, as emphasised by the post ‑ sentencing judge, the treatment he received on a few instances while in Iaşi Prison was “more symptomatic rather than coordinated” (see paragraph   25 above). 40.     However, the Court considers that in spite of those unfortunate shortcomings, the present case does not reveal a situation where the authorities’ oversights were so significant as to amount to a systemic lack of diligence in ensuring that the applicant received effective dental treatment. 41.     In that connection, the Court considers that, in respect of dental care, the case at hand differs significantly from the situation examined in V.D . v.   Romania (no. 7078/02, 16 February 2010), where the applicant, a toothless detainee, went without effective treatment because of a structural deficiency in prison dental care, despite the fact that his situation had been acknowledged by medical personnel and despite his repeated attempts to bring his problem to the attention of the authorities (see, in particular, V.D. v.   Romania, cited above, §§ 94-98). 42 .     In the case under examination the applicant had received dental care, or at least treatment involving medication, generally when he needed it. His medical records show that, until 2015, he had not requested any examination of his teeth (see paragraph 16 above). Since then, he had visited the prison’s dentist twenty times (see paragraphs 16, 18, 20 and 23   above). The information communicated to the Court does not indicate that the treatment dispensed was ineffective. 43 .     The Court also notes that the dental surgery performed on the applicant predominantly concerned extractions of fractured roots. In this connection, the Court considers relevant the authorities’ assessment of the applicant’s own responsibility in taking care of his dental needs, including, crucially, by following the doctors’ recommendations and maintaining appropriate oral hygiene (see paragraphs 14, 16 and 34 above). 44.     Furthermore, the applicant failed to provide the Court with further information as to the specific consequences for his health, such as how his dentition might have affected his mastication or digestion (contrast Iacov Stanciu v. Romania , no. 35972/05, § 184, 24 July 2012). 45 .     Lastly, with regard to the possibility of obtaining dental prostheses, it is important to note that according to the documents on file, the doctors who saw the applicant in the present case never recommended that he have dental prostheses of any kind (see, by way of contrast, V.D . v.   Romania , cited above, §§ 21 and 97). Thus, it cannot be said that dental prostheses were a necessary treatment for the applicant’s condition (see, mutatis mutandis , Epners-Gefners v. Latvia , no. 37862/02, § 45, 29 May 2012). 46 .     Moreover, the applicant’s allegation that his request to have dental prostheses, albeit granted by the prison authorities, remained unimplemented (see paragraph 13 above) is unsubstantiated, in the absence of any evidence to that effect. 47.     Having regard to the above, the Court is not convinced that the dental treatment the applicant received in prison subjected the applicant to distress or hardship of an intensity exceeding the unavoidable level of suffering inherent in detention or that, given the practical demands of imprisonment, his health and well-being were not adequately protected. 48.     The foregoing considerations are sufficient to enable the Court to conclude that there has been no violation of Article 3 of the Convention. FOR THESE REASONS, THE COURT, UNANIMOUSLY, Declares the application admissible; Holds that there has been no violation of Article 3 of the Convention. Done in English, and notified in writing on 16 July 2020, pursuant to Rule   77   §§   2 and 3 of the Rules of Court.   Ilse Freiwirth   Faris Vehabović Deputy Registrar   President