CEDH · CASELAW;DECISIONS;ADMISSIBILITYCOM;ENG — 17 novembre 2020

.s800EAC49 { font-size:12pt } .sFE10DC93 { margin-top:0pt; margin-bottom:0pt; text-align:center } .sBB9EE52A { font-family:Arial } .s2EF17D91 { margin-top:0pt; margin-bottom:0pt; text-align:center; font-size:2pt } .s5E1364CA { margin-top:0pt; margin-bottom:12pt; text-align:center; page-break-inside:avoid; page-break-after:avoid; font-size:14pt } .s339D85E6 { margin-top:0pt; margin-bottom:14pt; text-align:center; page-break-inside:avoid; page-break-after:avoid } .s490D418E { margin-top:14pt; margin-left:14.2pt; margin-bottom:3pt; text-align:justify; font-size:1pt } .s10950C61 { margin-top:0pt; margin-bottom:0pt; text-indent:14.2pt; text-align:justify } .sEB98FB19 { margin-top:0pt; margin-left:14.2pt; margin-bottom:0pt } .s1AE6489F { width:14.15pt; display:inline-block } .sA36B60A1 { font-family:Arial; font-style:italic } .s32563E28 { margin-top:0pt; margin-bottom:0pt } .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 } .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 } .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 } .s29100277 { font-family:Arial; font-weight:bold } .s30C8A987 { width:4.78pt; font:7pt 'Times New Roman'; display:inline-block } .s4E0353E8 { width:4.23pt; font:7pt 'Times New Roman'; display:inline-block } .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 } .s9D48DD53 { margin-top:6pt; margin-left:21.25pt; margin-bottom:6pt; text-indent:7.1pt; text-align:justify; font-size:10pt } .s743F3A55 { margin-right:0pt; margin-left:0pt; padding-left:0pt } .sC6C7C49B { margin-left:7.35pt; margin-bottom:6pt; page-break-inside:avoid; page-break-after:avoid; font-weight:normal; 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 } .s84651E4E { margin-top:14pt; margin-left:14.2pt; margin-bottom:3pt; text-align:justify } .s69DCC830 { margin-top:36pt; margin-bottom:0pt } .sD61D3655 { width:22.7pt; display:inline-block } .s1FCAD576 { width:123.53pt; display:inline-block } .s64406319 { width:11.68pt; display:inline-block } .s2753FA3F { width:163.53pt; display:inline-block }     FOURTH SECTION DECISION Application no. 54129/16 Andrei MIRON against Romania   The European Court of Human Rights (Fourth Section), sitting on 17   November 2020 as a Committee composed of:   Gabriele Kucsko-Stadlmayer, President,   Iulia Antoanella Motoc,   Pere Pastor Vilanova, judges, and Ilse Freiwirth, Deputy Section Registrar, Having regard to the above application lodged on 2 September 2016, 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 Andrei Miron, is a Romanian national who was born in 1988 and lives in Câmpina. He was granted leave to represent himself. 2.     The Romanian Government (“the Government”) were represented by their Agent, Ms Oana Florentina Ezer, of the Ministry of Foreign Affairs. The circumstances of the case 3.     The facts of the case, as submitted by the parties, may be summarised as follows. The applicant’s detention 4.     In 2008 the applicant, a repeat offender, was imprisoned in Ploieşti Prison. He served his prison sentence also in Mărgineni, Craiova, Giurgiu, Poarta Albă, and Miercurea-Ciuc prisons. He transited through several other detention facilities and prison hospitals in order to take part in judicial proceedings and for medical reasons. 5.     On 3 April 2019 he was released on parole. Complaint concerning the infection with Hepatitis C and the related proceedings 6.     During his stay in Mioveni Prison Hospital, from 5 to 26   August 2013, the applicant was diagnosed with chronic hepatitis C. He was prescribed a specific diet as well as medication and vitamins for liver protection. 7.     The Government submitted that in 2015 a medical report drawn up by the Craiova Forensic Medicine Institute had noted that adequate health care could be provided to the applicant by the National Prisons System’s hospital network. 8.     The applicant was admitted to hospital in June 2015, July 2016, October 2016 and November 2019, his state of health being monitored and adequately cared for. Several other medical examinations were conducted in prison, so as to establish the evolution of the disease. Adequate medical treatment was prescribed each time. 9.     In February 2018 he was admitted to Rahova Prison Hospital for the extraction of some objects inserted subcutaneously in the penis (see also paragraphs   12 and 19 below). On that occasion, a psychiatric report was drawn up, finding that the applicant was a former drug user and that he had several self-inflicted wounds. (a)    Tort law proceedings 10 .     On 22 May 2015 the applicant filed tort claims (see paragraph   27   below) against the State, asking to be compensated for the fact that he had become infected with hepatitis C while imprisoned, due to improper conditions of detention which favoured the transmission of that contagious disease. He requested compensation of 100,000 RON (approximately EUR   23,000) in respect of moral damage for the harm thus suffered. 11.     On 20 April 2016 his claims were dismissed as ill-founded by the Craiova District Court. 12 .     The court relied mainly on the medical documents adduced to the file, which showed that the applicant had been admitted to hospital several times for various symptoms, starting in February 2009. After a further admission in 2013, the hospital release document mentioned the diagnosis of “hepatitis C and hypo anabolic syndrome” as well as the fact that he had a foreign object introduced subcutaneously in the penis. Other medical reports noted that the applicant had several homemade tattoos, two self ‑ inflicted scars on the right arm, as well as three balls introduced subcutaneously in the penis. 13 .     It found that there was no evidence on file to prove that the applicant had been placed in cells together with other inmates who had also been diagnosed with hepatitis C at the time. It also noted the self-inflicted wounds and the tattoos made by the applicant in inappropriate conditions, and concluded that the harm suffered by the applicant was not proved to have been caused by any action or inaction of the State authorities. 14.     The court also noted that, according to the medical documents, the applicant had refused in November 2013 to be admitted to Jilava Prison hospital to be tested for viruses and consequently prescribed appropriate anti-viral medication. Nevertheless, he received medical assistance and treatment for his disease, inasmuch as that was possible, in view of the above-mentioned refusal. 15.     The applicant appealed. He reiterated that his disease was due to the inadequate legislation regulating prison conditions, which allowed for healthy inmates to be placed with sick ones in totally unhygienic conditions. 16 .     On 15 February 2017 the Dolj County Court dismissed the appeal and upheld the lower court’s reasoning. It found that in view of the documents on file, the state authorities could not be held liable for the applicant’s infection; moreover, the applicant himself had ignored sanitary rules by executing multiple self-inflicted wounds and tattoos in improper hygiene conditions. While it was a fact that the applicant had become ill while detained, it was not at all established that the infection was due to action or lack of action on behalf of the state authorities. The court concluded that there was no evidence to prove any breach of Article 3 of the Convention in connection with the applicant’s claims about the detention conditions which had allegedly caused the infection. (b)    Complaint before the post-sentencing judge 17 .     On 23 March 2016 the applicant filed a complaint before the post ‑ sentencing judge, by virtue of the provisions of Law no. 254/2013 (see paragraph   28 below). He alleged a breach of Article 3 of the Convention on account of the fact that he had become infected while in prison, where both healthy and sick inmates were placed together to share a cell, thus contributing to the spread of the disease. He submitted that hair-cutting as well as dental tools, can-openers and knives were shared by all inmates, healthy and ill. 18 .     The post-sentencing judge heard the applicant on 5 April 2016. On that occasion, the applicant complained also of improper detention conditions, as well as of the fact that he had not received adequate dental care, in view of the fact that while imprisoned, he had lost 80% of his teeth. He submitted that he did not have the financial means to afford dental prosthetics. 19 .     The complaint relating to the hepatitis C infection was dismissed on 13   April 2016 as ill-founded. The judge held that the hepatitis C diagnosis had been established for the first time in 2013. The applicant had refused to be admitted to hospital for virus tests and to have appropriate medication prescribed. He received liver protection medication and vitamins. Certain risk factors in connection with hepatitis C infection were detected, such as the applicant’s homemade tattoos, self-inflicted wounds and subcutaneous penile insertions of various objects. 20 .     The applicant appealed. His appeal was partly allowed by the Craiova District Court on 12 July 2016, namely in connection with his complaint regarding the lack of adequate dental care as well as regarding the improper conditions of detention, which complaints had not been dealt with by the post-sentencing judge (see paragraph 18 above). Consequently, that part of the complaint was remitted to the lower instance court for further examination (see paragraph 22 below), while the complaint concerning the infection with hepatitis C was dismissed, the county court upholding the post-sentencing judge’s reasoning. Complaint concerning the applicant’s right to adequate dental care and related proceedings (a)    The applicant’s account 21 .     Upon the applicant’s request, he was examined on 11 May 2015 in Craiova Prison so as to have his dentition model drawn up. It revealed that at the time, he had six cavities, sixteen fractured roots, one missing tooth and three gangrenes. 22 .     The applicant’s complaints relating to the inadequate dental care he had received were dealt with by the post-sentencing judge, following the remittal of the case by the Craiova District Court on 12 July 2016 (see paragraph   20 above). 23.     On 21 October 2016 the post-sentencing judge dismissed the applicant’s complaints as unsubstantiated. The judge found that the only time the applicant had asked for a dental examination was on 11 May 2015 when his dentition model was established (see paragraph 21 above). The model showed that the applicant’s allegation as to a loss of 80% of his teeth was completely unsubstantiated. 24 .     The judge further noted that between November 2015 and September 2016 the prison had not had any dentist in situ ; however, all emergencies were taken to Craiova Prison for Juveniles. In any event, the applicant had not asked for any dental examination, nor complained of any dental problems. 25 .     The applicant appealed before the Craiova District Court. However, on 12 January 2017 he withdrew his appeal and the case was closed. (b)    The Government’s account 26 .     The Government submitted that, during his detention, the applicant had asked several times to be medically examined for his dental problems: on 3 January 2008 and on 13 November 2013, he had received painkillers and anti-inflammatory medication. On 18 December 2017 an X-ray had been recommended and some treatment provided for one of his fractured roots; on 5 November 2018 the same recommendation had been made and he had been given anti-inflammatory medication; on 25 January 2019 he had received medication following treatment for one of his fractured roots; on 14 and 17 February 2019 he had received anti-inflammatory medication. Relevant domestic law 27 .     The general provisions on tort law are described in Nicolae Virgiliu Tănase v. Romania ([GC], no. 41720/13, § 70, 25 June 2019). 28 .     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. Article 71 § 2 of the law provides that medical assistance, treatment and care in prison are to be provided upon request or whenever necessary, free of charge, as provided by the law, and by qualified staff. COMPLAINTS 29.     The applicant complained under Article 3 of the Convention that he contracted hepatitis C while in prison, as a result of improper and unhygienic conditions of detention. He further complained that during detention he had been deprived of adequate dental care. THE LAW 30.     The applicant complained that he had contracted hepatitis C in prison, due to inadequate conditions of detention, which forced sick inmates to share cells with those who were healthy. He further complained that his significant dental problems had been inadequately cared for in detention. 31.     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.” Alleged violation of Article 3 on account of the applicant’s hepatitis C infection Submissions by the parties 32.     The Government argued that, according to the information submitted by the domestic authorities and confirmed by the national courts, there was no indication that the applicant had become infected with hepatitis C in prison. After being diagnosed with this disease, he had received appropriate medical care and nutrition and he was constantly medically supervised. Furthermore, in view of the existence of several risk factors in the applicant’s case (such as drug use, tattoos and self ‑ inflicted wounds, the insertion of various objects subcutaneously), it was hard to establish any causal link between the conditions of detention and the infection. 33.     The applicant maintained his claims, arguing that he had spent most of his life in prison, in overcrowded spaces, where contagious diseases spread easily among inmates. The Court’s assessment 34.     Regarding the State’s positive obligations to protect the physical well ‑ being of persons deprived of their liberty, for example by providing them with the requisite medical assistance, the Court refers to the relevant principles set out in its case-law (see, among other authorities, Kudła v.   Poland [GC], no. 30210/96, §§ 93-94, ECHR 2000 ‑ XI; Blokhin v.   Russia [GC], no. 47152/06, §§ 135-40, 23 March 2016). 35.     The Court firstly notes that the applicant brought his complaint about having contracted hepatitis C on account of the generally inadequate conditions of detention twice before the domestic courts: once in a tort law procedure, and the second time, before the post-sentencing judge (see paragraphs   10 and 17 above). 36.     On each of these occasions, the courts examined his arguments as well the evidence adduced to the file, in particular the medical documents relating to the disease (see paragraph 12 above), and concluded that the applicant’s claims were ill-founded. Essentially, the courts found that there was no indication on file of a lack of appropriate action on behalf of the prison authorities to prevent the applicant becoming infected with the hepatitis C virus, while there was sufficient substance in the hypothesis that risk factors such as self-inflicted wounds and tattoos executed in improper conditions might have been conducive to the infection (see paragraphs   13, 16, 19 and 20 above). 37.     Furthermore, the Court notes that the applicant’s allegations that he had become infected because of the common use by all inmates of unsterilised equipment (see paragraph 17 above) are not supported by any evidence. Similarly, no evidence was brought to prove that the applicant had been placed together with infected inmates, which had allegedly caused his own infection (see also paragraph 13 above). 38.     Consequently, there is no other indication in the file allowing a reasonable conclusion to be drawn as to the time and manner in which the applicant contracted hepatitis. 39 .     In view of the foregoing, the Court considers that the applicant’s allegations that he contracted hepatitis C in prison due to the authorities’ failure to provide adequate conditions of detention are not substantiated by sufficient evidence (see Vartic v. Romania (no. 2) , no. 14150/08, §§ 61 and 62, 17 December 2013; and Cătălin Eugen Micu v. Romania , no.   55104/13, §   56, 5 January 2016). Accordingly, although the disease in question was diagnosed while the applicant was under the State’s responsibility, the Court cannot deduce from that circumstance that the disease developed as a result of a failure on the State’s part to honour its positive obligations under Article   3 of the Convention. 40.     Therefore, this part of the application is manifestly ill-founded and should be dismissed as inadmissible in accordance with Article   35   §§   3   (a) and 4 of the Convention. Alleged violation of Article 3 on account of inadequate dental care Submissions by the parties 41 .     The Government argued that the applicant has failed to pursue diligently the available domestic remedies for his complaint relating to the alleged inadequate dental care. Thus, the only time he brought such a claim before the post-sentencing judge, his case was eventually closed because he withdrew his appeal (see paragraph 25 above). 42.     On the merits of the case, the Government submitted that the few times the applicant requested to be medically examined by a dentist, he was adequately cared for and received appropriate medication (see paragraph   26 above). 43.     The applicant argued that his dental model (see paragraph 21 above) showed that his situation was critical, and that was due to the lack of appropriate care in prison. The lack of teeth prevented him from having a normal life and from finding a good job. The Court’s assessment 44.     The Court notes at the outset that, in respect of dental care, the case at hand differs significantly from the situation examined in the case of V.D. v.   Romania (no. 7078/02, 16 February 2010), where the applicant, a detainee with no teeth, was left without effective treatment because of a structural problem 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 authorities’ attention (see V.D. v.   Romania , cited above, §§ 95-98). 45.     However, in the case under examination, the applicant complains rather of the authorities’ failure to ensure that he received effective dental treatment, which has led to, allegedly, almost complete tooth loss. 46.     As regards this complaint, the Court has already acknowledged the existence of an effective domestic remedy available for claims relating to inadequate medical treatment in prison (see for instance Petrea v.   Romania , no.   4792/03, §§ 35-36, 29 April 2008; and Sanatkar v.   Romania , no.   74721/12, § 31, 16 July 2015). 47 .     The Court notes in this respect that the applicant brought a complaint before the post-sentencing judge, as required by Law no. 254/2013 (see paragraphs   18 and 28 above). However, even if such a procedure was in principle capable of providing the applicant with appropriate redress for his claims, if these were found well-founded by the domestic courts, the applicant decided to put an end to it, withdrawing his appeal (see paragraph 25 above). No justification for this was provided by the applicant either before the domestic courts, or before this Court. Moreover, no further similar claims were ever brought before the domestic authorities by the applicant (see paragraphs 24 and 41 above). 48.     In view of the foregoing, the Court considers that the Government’s preliminary objection must be upheld and that the applicant’s complaint relating to the alleged inadequate dental care must be rejected as being inadmissible 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. Done in English and notified in writing on 10 December 2020.   Ilse Freiwirth   Gabriele Kucsko-Stadlmayer   Deputy Registrar   President