AS TO THE ADMISSIBILITY OF
Application No. 28499/95
by Harald METZGER
against Austria
The European Commission of Human Rights (First Chamber) sitting
in private on 21 May 1997, the following members being present:
Mrs. J. LIDDY, President
MM. E. BUSUTTIL
A. WEITZEL
C.L. ROZAKIS
L. LOUCAIDES
B. MARXER
B. CONFORTI
N. BRATZA
I. BÉKÉS
G. RESS
A. PERENIC
C. BÎRSAN
K. HERNDL
M. VILA AMIGÓ
Mrs. M. HION
Mr. R. NICOLINI
Mrs. M.F. BUQUICCHIO, Secretary to the Chamber
Having regard to Article 25 of the Convention for the Protection
of Human Rights and Fundamental Freedoms;
Having regard to the application introduced on 7 August 1995 by
Harald METZGER against Austria and registered on 11 September 1995
under file No. 28499/95;
Having regard to the report provided for in Rule 47 of the Rules
of Procedure of the Commission;
Having deliberated;
Decides as follows:
THE FACTS
The applicant, born in 1954, is an Austrian citizen. At the time
of the introduction of his application, he was detained at the Graz
Karlau prison. Since January 1997 he is detained at the Garsten prison.
The facts of the case, as submitted by the applicant may be
summarised as follows.
On 23 March 1995 the applicant, represented by counsel, requested
that the execution of his sentence be suspended for the purpose of
carrying out a bypass operation.
His request was supported by a medical report of 10 April 1995
by the prison hospital, stating that the applicant had already suffered
a cardiac infarct in 1994. The subsequent medicinal treatment had
proved to be insufficient. In view of the applicant's deteriorating
state of health a number of examinations had been carried out, which
had shown that there was an acute danger of a further heart attack. The
report, referring to consultations with the University Clinic for Heart
Surgery and Cardiology at the Graz Regional Hospital, recommended that
a bypass operation be carried out. A further report of the prison
hospital of 3 May 1995 recommended that an operation, which was
scheduled for autumn, be carried out as soon as possible.
On 22 May 1995 the Graz Regional Criminal Court (Landesgericht
für Strafsachen) dismissed the applicant's request. It noted that the
applicant was serving sentences amounting to a total of twenty-six and
a half years' imprisonment. On the basis of the medical reports before
it, the Court found that the applicant suffered from a serious illness.
Further, it had regard to a report of the prison administration of
17 May 1995, according to which arrangements could be made for the
applicant within the framework of the execution of his sentence, to be
operated at the Graz Regional Hospital and to spend a rehabilitation
period at the Wilhelmshöhe branch of the Vienna Josefstadt prison. In
conclusion it found that the requirements for suspending the execution
of the applicant's prison sentence were not met.
On 6 June 1995 the applicant appealed from this decision. He
claimed that the operation without specific rehabilitation would not
have any positive effect. He alleged that the Wilhelmshöhe branch of
the Vienna Josefstadt prison was a specialised institution for
prisoners suffering from tuberculosis and was not at all equipped and
suited for rehabilitation after a heart operation. On the contrary,
there would even be a higher risk of infection by the other patients.
He criticised in particular the fact that the court only relied on the
report of 17 May 1995, according to which agreement as to his placement
for the rehabilitation period had been reached between the
administrators of the two prisons involved, who lacked the medical
expertise to decide whether the Wilhelmshöhe branch had the facilities
required for treating a heart patient. He suggested that the court
order an expert opinion to clarify this question.
On 30 June 1995 the Graz Court of Appeal (Oberlandesgericht)
dismissed the applicant's appeal. It noted that, in 1979, the applicant
had been convicted of murder and had been sentenced to fourteen years'
imprisonment. In 1984 he had been convicted inter alia of attempted
incitement to murder and aggravated intimidation and had been sentenced
to ten years' imprisonment. In 1989 he had been convicted of selling
drugs and had been sentenced to two and a half years' imprisonment.
The Court of Appeal referring to S. 133 of the Execution of
Sentences Act (Strafvollzugsgesetz), noted that a suspension of the
execution of a sentence had to be granted if a prisoner was seriously
ill and if there were reasons to believe that he was in peril of his
life. However, S. 5 of the said Act excluded a suspension as regards
a prisoner who presented a danger to public security or to other
persons, on account of the nature and motive of the offences of which
he had been convicted or on account of his life conduct: in such cases
a subsidiary detention (Ersatzhaft) had to be ordered, which could be
carried out in a public hospital if necessary. The Court, having
regard to the gravity of the offences for which the applicant had been
sentenced to altogether twenty-six and a half years' imprisonment and
considering the fact that he had even committed serious offences while
being in prison, namely attempted incitement to murder and aggravated
intimidation as well as selling drugs, concluded that he was a
particularly dangerous person within the meaning of S. 5 of the
Execution of Sentences Act. Thus, his request for suspension of the
execution of his sentence could not be granted.
Subsequently, on 5 September 1995, the applicant filed a renewed
request for a suspension of the execution of his sentence for the
purpose of undergoing the bypass operation and subsequent
rehabilitation in a hospital of his own choice. He submitted that he
was, under the psychological strain of being imprisoned, unable to
prepare himself for the operation and in particular to follow the
necessary diet for reducing his weight. Further, he claimed to have
lost all confidence in the doctors of the Graz Regional Hospital as,
according to him, they should insist that the rehabilitation be carried
out in an appropriate specialised rehabilitation centre instead of the
Wilhelmshöhe branch of the Vienna Josefstadt prison. The applicant also
repeated his objections to a rehabilitation at this institution. In
conclusion, the applicant argued that the bypass operation as well as
its preparation and the rehabilitation could only be properly carried
out if he was released from prison.
On 2 October 1995 the Graz Regional Court, referring to the
previous decisions, refused the applicant's request. It reaffirmed that
the operation did not necessitate a suspension of the execution of the
applicant's sentence and noted that, meanwhile, a date for the
operation had been fixed by the University Clinic at the Graz Regional
Hospital.
On 9 November 1995 the Graz Court of Appeal dismissed the
applicant's appeal. It confirmed its decision of 30 June 1995 as
regards the applicant's dangerousness and added that an expert opinion
submitted by the applicant did not show that his aggressiveness had
diminished. The expert mainly claimed that the applicant was so
obsessed with his illness that he was not likely to commit further
offences if released, but did not show that he had undergone a
sustainable change of his personality. As regards the applicant's
allegations that an appropriate preparation for the operation and
subsequent rehabilitation could not be achieved in prison, the Court
referred to S. 71 para. 2 of the Execution of Sentences Act, according
to which a prisoner had to be transferred to a public hospital if
necessary medical treatment could not be carried out in prison. In
particular the type and scope of rehabilitation measures had to be
assessed by the doctors after the operation. The above-mentioned
provision guaranteed that it would be carried out in a hospital if the
doctors in charge considered it necessary.
On 18 January 1996 the Graz Regional Court dismissed a further
request by the applicant for a suspension of the execution of his
sentence. It noted that the applicant had refused to undergo the
operation which had been scheduled for October 1995 at the University
Clinic of the Graz Regional Hospital. According to a report of the
prison hospital of 31 October 1995 the applicant had been informed that
his refusal might increase the risk of a further cardiac infarct. In
any case, the possibility of an operation at the Graz Regional Hospital
was still open to the applicant and, none of the relevant circumstances
having changed, the requirements for a suspension of the execution of
his sentence still were not met.
On 27 December 1996 the Graz Regional Court dismissed the
applicant's renewed request for a suspension of the execution of his
sentence, mainly referring to the previous decisions.
On 6 February 1997 the Graz Court of Appeal confirmed this
decision, adding as regards the applicant's dangerousness that
preliminary investigations on the suspicion of drug dealing were
currently conducted against him.
COMPLAINTS
The applicant complains under Article 3 of the Convention that
he was denied the necessary medical treatment as regards his heart
disease. He submits in particular that the courts, when dismissing his
request for suspension of the execution of his sentence, failed to hear
a medical expert on the question whether the rehabilitation after his
bypass operation could be carried out in prison.
THE LAW
The applicant complains about the alleged denial of medical
treatment in prison. He invokes Article 3 (Art. 3) of the Convention,
which reads as follows:
"No one shall be subjected to torture or to inhuman or degrading
treatment or punishment."
The Commission first recalls the Convention organs' case-law,
according to which ill-treatment must attain a minimum level of
severity if it is to fall within the scope of Article 3 (Art. 3). The
assessment of this minimum is, in the nature of things, relative and
will depend on all the circumstances of the case (see Eur. Court HR,
Ireland v. United Kingdom judgment of 18 January 1978, Series A no. 25,
p. 65, para. 162).
The Commission further recalls that inhuman treatment may be
found to exist, when a person's detention as such causes him ill-
health. In such cases, the Commission examines in particular the
medical treatment at that person's disposal. Moreover, the State has
an obligation to maintain a continuous review of the detention
arrangements employed with a view to ensuring the health and well-being
of all prisoners, having due regard to the ordinary and reasonable
requirements of imprisonment (cf. No. 21915/93, Dec. 12.1.1995,
D.R. 80, p. 108 at p. 128 with further references).
The Commission notes that the applicant is a long-term prisoner
who has apparently been detained since 1979. There is nothing in the
file to suggest that the applicant's heart disease is a direct
consequence of his detention (see Chartier v. Italy, Comm. Report
8.12.82, D.R. 33, p. 41 at p. 58).
According to the medical reports in the file, the applicant
suffered a cardiac infarct in 1994 and, following a deterioration of
his state of health, the prison hospital recommended in spring 1995
that a bypass operation be carried out. Thereupon, the applicant
requested a suspension of the execution of his sentence. In a first set
of proceedings, the courts, having regard to the gravity of the
offences committed by the applicant and his dangerousness refused his
request. They referred in particular to SS. 5 and 133 of the Execution
of Sentences Act which excludes a suspension of the sentence in case
of particularly dangerous prisoners and instead provides for a
subsidiary detention which has to be carried out in a public hospital,
if necessary. More specifically they noted that the authorities of the
Graz Karlau prison, where the applicant was detained at the time,
envisaged an operation at the University Clinic of the Graz Regional
Hospital and an ensuing rehabilitation period at the Wilhelmshöhe
branch of the Vienna Josefstadt prison.
It follows from the documents in the file that the operation was
scheduled for October 1995. However, the applicant refused to undergo
the operation and filed a number of further requests for suspension of
the execution of his sentence in order to have the operation and
rehabilitation carried out in a hospital of his choice. He argued
mainly that he lacked confidence in the doctors of the Graz Regional
Hospital. Moreover, he claimed that he was unable to prepare himself
for the operation while being imprisoned, that in particular the
rehabilitation envisaged at the Wilhelmshöhe branch of the Vienna
Josefstadt prison was unacceptable and that the courts should have
heard a medical expert as regards the question of rehabilitation. The
courts continued to refuse a suspension of the execution of the
applicant's sentence. They mainly reaffirmed the reasoning given in the
first set of proceedings. Further, they noted that the possibility of
being operated at the Graz Regional Hospital remained open to the
applicant. As regards rehabilitation, they expressed the view that its
type and scope would have to be assessed by the doctors in charge after
the operation. Further, S. 71 of the Execution of Sentences Act
guaranteed that it would be carried out in a public hospital if that
was necessary from a medical point of view. Nevertheless, the applicant
continued to refuse the operation.
In these circumstances, the Commission finds that the authorities
made appropriate arrangements for the applicant's medical treatment.
However, this treatment could not be afforded to him on account of his
own continuous refusal to be operated at the University Clinic of the
Graz Regional Hospital. The fact that the applicant's choice of a
hospital is limited appears as an ordinary restriction resulting from
his imprisonment.
In conclusion, the Commission considers that the circumstances
under which the applicant is detained including his opportunities to
have access to medical treatment do not constitute treatment appearing
to be in violation of Article 3 (Art. 3) of the Convention.
It follows that the application is manifestly ill-founded within
the meaning of Article 27 para. 2 (Art. 27-2) of the Convention.
For these reasons, the Commission, unanimously,
DECLARES THE APPLICATION INADMISSIBLE.
M.F. BUQUICCHIO J. LIDDY
Secretary President
to the First Chamber of the First Chamber
Full & Egal Universal Law Academy