CEDH · CASELAW;CLIN;ENG — 5 mars 2013

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Turkey - 44084/10 Judgment 5.3.2013 [Section II] Article 3 Degrading treatment Inhuman treatment Inadequacy of procedure for protecting health of remand prisoner suffering from serious illness: violation   Article 14 Discrimination Unjustified difference in treatment of remand prisoners compared to convicted prisoners in respect of release on health grounds: violation   Article 46 Article 46-2 Execution of judgment Measures of a general character Respondent State required to take general measures to alleviate problems concerning health-care for remand prisoners suffering from serious illness   Facts – In February 2007 the applicant, who had been in pre-trial detention since December 2006, began to complain of gastric and digestive problems. In September 2008 the Assize Court found her guilty of intentional homicide and sentenced her to fifteen years’ imprisonment. Following an appeal against that decision, she remained in pre-trial detention. In April 2009 she was diagnosed with advanced stomach cancer. All her subsequent applications for provisional release were rejected. In February 2011 the Court of Cassation upheld the applicant’s conviction, which became final as a result. In June 2011 proceedings were instituted for the suspension of her sentence, after a medical report had concluded that her illness was incurable and her life would be endangered by attempting to treat her in a prison environment. On 12   July 2011 the applicant died of her illness before the completion of the proceedings she had brought in the hope of securing either provisional release, the suspension of her detention or a presidential pardon. Law Article 3: It was not disputed that the applicant’s condition had been serious and had deteriorated over time, a fact that raised issues regarding her treatment in a prison environment. While she had been in pre-trial detention, her successive requests for release had all been rejected even though they were supported by medical reports. The courts had refused to implement the applicable procedures for prisoners with serious illnesses, on the ground that only those who had been convicted with final effect were eligible for them. This interpretation was partly due to the imprecise nature of the relevant legal provisions and the lack of a clear rule requiring judges to have due regard to the prisoner’s clinical picture when applying the Code of Criminal Procedure. Accordingly, the system for protecting prisoners with diseases had lacked the requisite clarity, foreseeability and effectiveness. Once her conviction had become final, the applicant had satisfied the practical conditions for applying for the statutory measures aimed at protecting the health of prisoners with serious illnesses, since by then her disease had reached the terminal phase. Her lawyer had submitted a further application for a presidential pardon and a request for the suspension of her sentence. On 8   April 2011 the hospital department responsible for the applicant had declared that she was unfit to remain in prison. However, the public prosecutor's office, which was required by law to refer the matter to a panel of specialists from the Institute of Forensic Medicine, had waited some twenty days before doing so. Yet there was no indication that the panel was more competent to assess a particular individual’s health than the specialist hospital department which had been monitoring her regularly. It was therefore difficult to understand why the Institute had seen fit to re-examine the applicant by transferring her to another city or why it had waited until 8   June 2011 before doing so, when the only issue to be determined was whether the illness diagnosed at the hospital rendered her eligible for a measure provided for by law. Lastly, the forensic medical experts had then taken a further week to submit their report, which had ultimately authorised the applicant’s release. The report had not been forwarded to the appropriate public prosecutor but had simply been made available on the Ministry of Justice’s official online portal one week after it had been produced on 15   June 2011, and had not been received by the public prosecutor's office until 18   July, six days after the applicant’s death. The procedures in question had thus been applied in a manner that placed formalities above humanitarian considerations, thus preventing the applicant, who by that stage was dying, from spending her final days in dignity. Her detention without access to the protection system available in theory in Turkish law had undermined her dignity and caused her hardship exceeding the inevitable level of suffering associated with deprivation of liberty and with cancer treatment. Conclusion : violation (unanimously). Article 14 in conjunction with Article   3: The facts complained of fell within the scope of Article   3, which had been found to have been breached. The applicant’s position as a “pre-trial detainee” was covered by the notion of “other status” in Article   14, and she could claim to have been in a similar situation to “convicted prisoners”. Article   14 was therefore applicable in the present case. Under the applicable legislation, pre-trial detainees were ineligible for the various forms of release. There was therefore a difference in treatment between such prisoners and those serving a final sentence, since the former did not enjoy the same legal protection as the latter if they were suffering from a terminal illness. However, the European Prison Rules * stated that no discrimination was permissible between persons who had been remanded in custody and those who had been deprived of their liberty following conviction. Other recommendations also dealt with the issue of treatment of terminally ill people. Accordingly, the Court confirmed the approach it had adopted in the Laduna v.   Slovakia judgment, which concerned a difference in treatment between remand and convicted prisoners in exercising the right to receive visits. This approach applied a fortiori in the present case, which related to the protection of the dignity of prisoners suffering from a disease with a short-term fatal prognosis. Conclusion : violation (unanimously). Article 46: The issues raised in the present case were likely to recur whenever a person in pre-trial detention was suffering from a disease with a short-term fatal prognosis. On an exceptional basis, the Court indicated the general measures that might alleviate some of the problems noted regarding the procedural arrangements in place to protect prisoners’ health and well-being. There should be an explicit rule requiring judges to have due regard, when taking decisions concerning pre-trial detainees – who, by definition, were to be presumed innocent – to their state of health and the compatibility of their clinical picture with life in prison, bearing in mind humanitarian considerations. Furthermore, in the case of detainees whose condition was exceptionally serious, the Court of Cassation should be empowered to release them at any stage of the proceedings before it, in particular where the case was referred to it automatically. As regards the suspension of sentences on health grounds and applications to the President of Turkey for a pardon on medical grounds, which were essentially based on an assessment of objective medical findings and, by their very nature, on humanitarian considerations, the protection system could ensure that pre-trial detainees suffering from diseases with a short-term fatal prognosis had the opportunity to apply for similar measures to those available to convicted prisoners, whether by establishing new rules or under the existing rules. Concerning the official system of forensic medical examinations, the purpose of which was to determine whether a prisoner’s illness was compatible with prison life, the existing procedure, which conferred a decisive role on the Institute of Forensic Medicine, should be simplified in order to avoid an excessively formal approach, so that prisoners with terminal illnesses would no longer be left abandoned or made to suffer as a result of delays, errors of judgment or other shortcomings. The Court left it to the respondent State to take the general measures it considered necessary to achieve the desired aims. Article 41: EUR 20,000 jointly to the applicant’s heirs in respect of non-pecuniary damage; claim in respect of pecuniary damage dismissed. (See Laduna v. Slovakia , no.   31827/02, 13   December 2011, Information Note no.   147) * Recommendation Rec(2006)2 of the Committee of Ministers to the member States of the Council of Europe on the European Prison Rules, adopted on 11   January 2006   © Council of Europe/European Court of Human Rights This summary by the Registry does not bind the Court. Click here for the Case-Law Information Notes