FOURTH SECTION
DECISION
Application no. 557/12
Ilir DYBEKU
against Albania
The European Court of Human Rights (Fourth Section), sitting on 11 March 2014 as a Chamber composed of:
Ineta Ziemele, President,
Päivi Hirvelä,
Ledi Bianku,
Nona Tsotsoria,
Paul Mahoney,
Krzysztof Wojtyczek,
Faris Vehabović, judges,
and Françoise Elens-Passos, Section Registrar,
Having regard to the above application lodged on 4 October 2011,
Having deliberated, decides as follows:
THE FACTS
1. The applicant, Mr Ilir Dybeku, is an Albanian national, who was born in 1971 and is serving a prison sentence in the Kruja prison, a special establishment for mentally ill prisoners. He is represented before the Court by his father, Mr Shyqyri Dybeku.
2. The facts of the case, as submitted by the applicant, may be summarised as follows.
A. Application no. 41153/06 and the Court’s judgment of 18 December 2007
3. On 25 September 2006 the applicant lodged an application with this Court (no. 41153/06). The applicant, who suffered from chronic paranoid schizophrenia, was convicted of voluntary homicide and sentenced to life imprisonment by a final decision of the Supreme Court of 2 March 2004. The domestic courts relied on a medical report to conclude that the applicant could stand trial. The applicant was serving his sentence in the Peqin high security prison, when he complained before this Court about the inappropriate conditions of detention, the inadequacy of the medical treatment and the unfairness of domestic proceedings.
4. On 18 December 2007 the Court delivered its judgment in that case (Dybeku v. Albania, no. 41153/06, 18 December 2007). It found a breach of Article 3 of the Convention: the applicant’s state of health was such that he had been subjected to inhuman and degrading treatment on account of the inappropriate conditions of detention and the inadequacy of the medical treatment he had received since 2002. No other violation having been found, the Court further made general indications under Article 46 of the Convention to the effect that the Government should “secure appropriate conditions of detention and adequate medical treatment, in particular, for prisoners, like the applicant, who need special care owing to their state of health” (paragraph 64 of the judgment).
B. The present application: subsequent events after the delivery of the Court’s judgment of 18 December 2007
1. Developments about the applicant’s state of health
5. On 13 June 2008 the applicant was transferred to the Kruja prison, a special establishment for mentally ill prisoners.
6. On 6 February 2009 the Kruja special establishment informed the applicant’s family that the applicant was under continuous supervision by doctors, nurses as well as by a psychiatrist. He was given medical treatment every day. This was supported by extracts of medical records for a defined period of time.
7. On 1 February 2010 the Ministry of Justice informed the applicant’s father that the applicant received psychiatric treatment in addition to medical treatment. Biochemical tests and imaging examination had also been carried out. The Ministry invited the father to appoint a psychiatrist of his choosing in accordance with the law.
8. On 29 October 2010 the Ministry of Justice informed the applicant’s father that the applicant was undergoing necessary treatment at the Prisons’ Hospital Centre in Tirana. X-ray computed tomography scan (CT scan) of the head as well as magnetic resonance imaging (MRI) had been carried out.
9. On 24 November 2010 the Kruja special establishment provided an update of the applicant’s health, stating that the applicant was quiet, not showing any psychiatric disorders, had regularly received medicines (risperidone 2mg 2x1 tablet, parkopan 5 mg 2x1 tablet and diazepam 5 mg 2 tablets) and psychiatric treatment and had been taken to the Prisons’ Hospital Centre in Tirana, as necessary.
10. On 20 February 2013 the Kruja special establishment confirmed to the applicant’s father that the applicant received risperidone 2mg 2x1 tablet and parkopan 5 mg 2x1.
2. Review proceedings
11. On 12 September 2009, relying on the Dybeku judgment (cited above), the applicant sought to review his conviction.
12. On 30 April 2010 the Supreme Court rejected the request as raising no grounds of appeal.
3. Proceedings for the prosecution of doctors
13. On an unspecified date, most likely in 2011, the applicant appealed against the prosecutor’s decision not to institute criminal proceedings against the doctors, whose medical report had been relied upon by the Supreme Court in 2004 for his conviction.
14. On 20 April 2011 the Durrës Court of Appeal upheld a lower court’s decision not to institute criminal proceedings against the doctors.
15. On 9 May 2011 the applicant appealed against that decision to the Supreme Court.
16. On 22 February 2013 the Supreme Court informed the applicant that his appeal was still pending.
4. Proceedings before the Committee of Ministers of the Council of Europe
17. In its 1092nd meeting (14 and 15 September 2010), the Ministers’ Deputies noted, as regards individual measures for the execution of the Dybeku judgment (cited above), that: (i) in June 2008 the applicant had been transferred to the Kruja special establishment which offered specialised treatment for prisoners suffering from mental disorders; (ii) the People’s Advocate (Ombudsperson), an independent institution which also monitors the conditions of detention of prisoners, reported that the applicant had been provided with the necessary medicines and his state of health was improving; (iii) no other individual measure seemed necessary in those circumstances.
18. In its 1164th meeting (5 and 7 March 2013), the Minister’s Deputies noted, as regards individual measures for the execution of the Dybeku judgment (cited above), that: (i) the applicant had been placed in appropriate conditions of detention with medical treatment adapted to his state of health; (ii) the People’s Advocate’s report of 19 October 2012 confirmed the above assessment; and (iii) the individual measures were thereafter connected to the implementation of general measures required to guarantee appropriate medical treatment to the applicant and to all detainees in a similar situation. The Ministers’ Deputies’ decision of 7 March 2013 noted, in so far as relevant, that:
“1. according to the information available, the applicant ...ha[s] currently access to the medical treatment required by [his] state of health;”
19. According to the decision, as regards the adoption of general measures, the Ministers’ Deputies:
“2. deplored nevertheless, having regard to the age of the case[s] and the seriousness of the violations in issue, that the authorities have not yet submitted detailed information to the Committee regarding the measures taken to ensure that the applicant[s], as well as all other detainees, would in the future be able to access medical treatment necessary for their state of health;
...
5. urged the Albanian authorities to submit to the Committee, without any further delay, an updated action plan containing all the missing information including, in particular, detailed information on the legal regime and practice governing the availability of medical treatment for detainees, so as to enable the Committee to assess the status of execution of these two judgments as soon as possible.”
COMPLAINTS
20. The applicant complains under Article 3 that he has continued to receive inappropriate medical treatment since December 2007. Under Article 6 § 1 of the Convention he complains about the authorities’ refusal to review his conviction and about the length of the proceedings before the Supreme Court as regards his appeal to institute criminal proceedings against the doctors.
THE LAW
21. The applicant relies on Articles 3 and 6 § 1 of the Convention, which provide, as relevant:
Article 3
“No one shall be subjected to torture or to inhuman or degrading treatment or punishment.”
Article 6
“1. In the determination of ... any criminal charge against him, everyone is entitled to a fair ... hearing ... by [a] ... tribunal ...”
22. The Court observes that, although the applicant has formulated his complaints under Articles 3 and 6 § 1 of the Convention, the circumstances of the case require it to have regard to Article 46 of the Convention, which states, as relevant:
“1. The High Contracting Parties undertake to abide by the final judgment of the Court in any case to which they are parties.
2. The final judgment of the Court shall be transmitted to the Committee of Ministers, which shall supervise its execution.”
A. Article 3 complaint
23. The Court observes that it can, of its own motion, examine whether it has jurisdiction ratione materiae to consider an application (see, for example, Tănase v. Moldova [GC], no. 7/08, § 131, ECHR 2010), particularly when the facts raised therein are related to or appear to be a continuation of facts examined in a previous application. The Court will therefore ascertain whether the present application relies on the same facts as application no. 41153/06 in the case of Dybeku v. Albania (cited above) (see Steck-Risch and Others v. Liechtenstein (dec.), no. 29061/08, 11 May 2010) and whether it has jurisdiction ratione materiae. In this connection, the Court recalls the principles laid down in the judgment of Ivanţoc and Others v. Moldova and Russia (no. 23687/05, 15 November 2011):
“84. The Committee of Ministers’ role does not mean, however, that measures taken by a respondent State to remedy a violation found by the Court cannot raise a new issue undecided by the original judgment and, as such, form the subject of a new application that may be dealt with by the Court. Thus, for example, the Court may entertain a complaint that a retrial at domestic level by way of implementation of one of its judgments gave rise to a new breach of the Convention.
On that basis, the Court has also found that it was competent to examine a complaint that a domestic court had dismissed an application to reopen proceedings following the Court’s judgment. The Court relied mainly on the fact that the grounds for dismissing the application to reopen proceedings constituted relevant new information capable of giving rise to a fresh violation of the Convention (references omitted).
85. Reference should also be made in this context to the criteria established in the case-law concerning Article 35 § 2 (b), by which an application is to be declared inadmissible if it “is substantially the same as a matter that has already been examined by the Court and contains no relevant new information”: (i) an application is considered as being “substantially the same” where the parties, the complaints and the facts are identical; (ii) the concept of complaint is characterised by the facts alleged in it and not merely by the legal grounds or arguments relied on; and (iii) where the applicant submits new information, the application will not be essentially the same as a previous application (references omitted).
86. Accordingly, the powers assigned to the Committee of Ministers by Article 46 to supervise the execution of the Court’s judgments and evaluate the implementation of the measures taken by the States under this Article will not be encroached on where the Court has to deal with relevant new information in the context of a fresh application (references omitted).
87. Moreover, in the specific context of a continuing violation of a Convention right following adoption of a judgment in which the Court has found a violation of that right during a certain period of time, it is not unusual for the Court to examine a second application concerning a violation of that right in the subsequent period (references omitted).
24. Turning to the present case, the Court notes that the applicant’s complaint under Article 3 relates to the domestic authorities’ execution of this Court’s judgment of 18 December 2007 in so far as it found a breach of Article 3 of the Convention on account of the inappropriate conditions of the applicant’s detention and the inadequate medical treatment of the applicant (a mentally-ill prisoner) in the period between 2002 and 2007.
25. The documents submitted by the applicant show that on 13 June 2008 the applicant was transferred from a high-security prison to Kruja prison, a special establishment catering for mentally-ill prisoners. The medical records demonstrate that he received daily medical treatment and psychiatric counselling. Biochemical tests, CT scans and MRIs were also carried out. He was transferred for treatment to the Prisons’ Hospital Centre in Tirana, as necessary. On 1 February 2010 the authorities reminded the applicant’s father of the applicant’s right to appoint a psychiatrist of his choosing. There is no evidence that the applicant availed himself of this opportunity.
26. The Court further observes that the evidence before the Committee of Ministers’ Deputies in 2010 and 2013 was to the effect that the applicant had been receiving appropriate medical treatment since 2008, this evidence including information from the People’s Advocate (paragraph 17 and 18 above).
27. In this context, the Court finds that both, the national authorities and the Committee of Ministers, apart from the measures taken to execute the Court’s judgment of 18 December 2007, have not been presented with any relevant new information, in fact and in law, undecided by that judgment. Similarly, the procedure for the execution of the Court’s judgment of 18 December 2007 has resulted in no new facts coming to light (see Ivanţoc and Others, cited above, § 85). The Committee of Ministers have noted that no other individual measures are required to be taken in view of the treatment with which the applicant has been provided.
28. On this point, the present case differs from, amongst others, Verein gegen Tierfabriken Schweiz (VgT) v. Switzerland (no. 2) ([GC], no. 32772/02, §§ 65 and 67, ECHR 2009). The present case is pending before the Committee of Ministers only as regards the adoption of general measures in order to, as noted by the Committee of Ministers, “ensure that ... all other detainees, would in the future be able to access medical treatment necessary for their state of health.” In Verein gegen Tierfabriken Schweiz (VgT) (no. 2) the Committee of Ministers had ended its supervision of the execution of the Court’s original judgment without taking into account the Federal Court’s subsequent judgment refusing the applicant association’s application to reopen the proceedings, since the Government had not informed it of that judgment – and which was partly based on the existence of new evidence.
29. It follows that the Court cannot consider this complaint without encroaching on the powers of the Committee of Ministers taken under Article 46 of the Convention, before whom the supervision of the execution of the Court’s judgment of 18 December 2007 is still pending. Accordingly, it considers that this complaint is incompatible ratione materiae and must be rejected pursuant to Article 35 §§ 3 (a) and 4 of the Convention.
B. Article 6 complaints
1. As regards the unfairness of the review proceedings
30. The applicant’s complaints under Article 6 § 1 about the authorities’ refusal to review his conviction should be rejected as incompatible ratione materiae in accordance with Article 35 §§ 3 (a) and 4 of the Convention, because the review proceedings cannot be regarded as concerning the determination of a “criminal charge” within the meaning of Article 6 § 1 of the Convention (see, amongst others, Fischer v. Austria (dec.), no. 27569/02, 6 May 2003; Schelling v. Austria (dec.), no. 46128/07, 16 September 2010; and Steck-Risch and Others v. Liechtenstein (dec.), cited above; see, for example, Alekseyenko v. Russia, no. 74266/01, § 55, 6 July 2009; Zasurtsev v. Russia, no. 67051/01, § 62, 27 April 2006; Vanyan v. Russia, no. 53203/99, § 56, 15 December 2005; and Kaisti v. Finland (dec.), no. 70313/01, 14 September 2004).
2. As regards the length of proceedings
31. While it would appear that the applicant’s appeal of 9 May 2011 is still pending before the Supreme Court, Article 6 § 1 of the Convention does not guarantee the right to bring criminal proceedings against a third person (see, amongst others, Kuznetsov and Others v. Russia (dec.), no. 184/02, 9 September 2004). Furthermore, the proceedings in question do not involve the determination of the applicant’s “civil rights and obligations”. Consequently, this complaint should also be declared incompatible ratione materiae in accordance with Article 35 §§ 3 (a) and 4 of the Convention.
For these reasons, the Court unanimously
Declares the application inadmissible.
Françoise Elens-PassosIneta Ziemele
RegistrarPresident
Full & Egal Universal Law Academy