V.S. v. ESTONIA

SECOND SECTION

DECISION

Application no. 8685/15
V.S.
against Estonia

The European Court of Human Rights (Second Section), sitting on 20 February 2018 as a Committee composed of:

Ledi Bianku, President,
Nebojša Vučinić,
Jon Fridrik Kjølbro, judges,
and Hasan Bakırcı, Deputy Section Registrar,

Having regard to the above application lodged on 10 February 2015,

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 V.S., is s stateless person, who was born in 1961 and lives in Tallinn. He was represented before the Court by Mr R. Käbi, a lawyer practising in Tallinn. The President decided under Rules 33 and 47 § 4 of the Rules of the Court that the applicant should be granted anonymity and the file should be confidential.

2. The Estonian Government (“the Government”) were represented by their Agent, Ms M. Kuurberg, of the Ministry of Foreign Affairs.

A. The circumstances of the case

3. The facts of the case, as submitted by the parties, may be summarised as follows.

4. On 11 November 2011 at about 1 p.m. the applicant, who was at the time serving a prison sentence, was struck by another prisoner. The prison medical records state that the applicant had bruising and swelling over an area of 3 cm by 4 cm under his left eye, skin redness on the right cheek and neck and swelling of both the left and right sides of his jaw over an area of 3 cm by 3 cm. An X-ray taken on the same date revealed that the applicant had sustained a complete transverse fracture of the left side of his mandible (jawbone), with the displacement of bone fragments.

5. On the same day, approximately two hours later, he was taken to the emergency department of the regional hospital (“hospital Y”) for further examination. According to the medical file, the applicant was diagnosed with fractures of the skull and facial bones, and a fracture of the cranial vault. His jaw was bandaged, and he was given pain medication and instructed to rinse his mouth. Under the section “treatment”, the medical file states in a brief manner the following: “dental consultation – Dr N – recommendation treatment in Tallinn. Rinsing of the mouth. Pain medication” (“Kons. Stomatoloogile – Dr N – Soovitus ravi Tallinnas. Suu loputamine. Valuvaigisti”). Under “further treatment” the medical file indicates “dental treatment”. Under the “decision” section of the file, the box for the patient to be referred to “another/same medical facility” (teise/samasse raviasutusse) was not ticked, and instead a box “other” (muu), without any further explanation being given, was ticked.

6. According to the applicant, the doctors in the emergency department had considered that he should be sent to either Tallinn or Tartu for surgery, since there was no dentist on duty at that time on a Friday in hospital Y. The prison officers escorting the applicant had refused to take him to Tallinn for surgery. The applicant claimed that the emergency department doctors had then wanted to place him in the hospital’s inpatient care department to wait for surgery there, but the prison officers had said that the prison had inpatient treatment facilities and that he would be placed there. The applicant further submitted that the doctors had instructed the prison officers to bring him to the hospital for surgery on 14 November 2011.

7. According to the Government, there was no information in the medical file indicating the need for the applicant to be taken to either Tallinn or Tartu, to be placed in the prison inpatient care facility, or to be brought back to hospital Y on 14 November 2011.

8. After leaving the emergency department, the applicant was taken back to prison and was placed in his regular accommodation cell.

9. Before 15 November 2011 the prison doctor examined the applicant on four occasions and ensured that he received regular pain relief and anti-inflammatory medication. On 12 November 2011 the infectious diseases specialist at hospital Y was consulted and his suggestion about which exact medication was more suitable was followed. During those examinations the applicant complained of pain in his jaw and trouble in sleeping. A note in the medical file dated 14 November 2011 states that the applicant’s entire face was swollen, he was unable to open his mouth, there was an unpleasant smell coming from his mouth and it was difficult to understand his speech.

10. On 18 November 2011 the applicant was examined by Dr N., a dentist at hospital Y. According to the medical record of the examination, the applicant had a fracture of the lower jawbone. This was cleaned under anaesthesia and the fragment of the lower jawbone was fixed with an internal mesh.

11. Between 25 November and 27 December 2011, the applicant was treated by Dr N. on four occasions, after which the treatment was regarded as completed.

12. On 23 January 2012 the applicant requested information from the prison as to why he had not been taken to an appointment with a dental surgeon before 18 November 2011. On 6 March 2012 the prison responded that the medical personnel of the emergency department of hospital Y had not considered it necessary to give him an emergency appointment and that he had thus had to wait for an appointment according to the planned schedule.

13. On 4 April 2012 a specialist senior prison nurse issued a medical certificate (õiend) which indicated that the applicant had received treatment for his jaw until 27 December 2011 and that being in his prison cell with a broken jawbone had not damaged the applicant’s health.

14. After the applicant had unsuccessfully claimed compensation from the prison, on 10 June 2012 he lodged a complaint with the Tartu Administrative Court in which he claimed 100,000 euros (EUR) in compensation for non-pecuniary damage to his health and dignity because he had not been provided with prompt medical treatment. The prison contested the applicant’s allegations and stated that he had received adequate medical care at the prison and the hospital. The prison also submitted a medical certificate dated 4 April 2012 (see paragraph 13 above) in support of its argument.

15. At a hearing on 14 March 2013 the applicant repeated his statements about the authorities’ failure to provide him with prompt treatment (see paragraph 6 above). He further conceded that he had not submitted any written requests to be taken for surgery sooner.

16. On 28 March 2014 the Tartu Administrative Court dismissed the applicant’s complaint and refused to award any compensation for non-pecuniary damage. The court held that the applicant had been provided with continuing medical treatment and that there was no proof that hospital Y had instructed the prison authorities to take the applicant to Tallinn or to bring him to the hospital for further treatment on 14 November 2011 or that there had been any decision with which the prison officials had failed to comply. There was also no evidence that the prison officials had been ordered to place the applicant in the inpatient treatment facility instead of his cell. The court noted that it could not reassess the medical decisions about the need for treatment. Relying on the prison’s explanation of 6 March 2012 (see paragraph 12 above), the court noted that it was a generally known fact that there was a waiting list to get a specialist doctor’s appointment. The Tartu Administrative Court also relied on the medical certificate of 4 April 2012 (see paragraph 13 above).

17. On 14 April 2013 the applicant lodged an appeal. He noted that the court had mistakenly focused on the fact that he had been given pain relief medication and that he had received outpatient treatment on 18 November 2011. It had failed to analyse why the prison officers had refused to take him to Tallinn for surgery, why he had been taken to the hospital for outpatient treatment only on 18 November 2011 (when he was supposed to have been taken there on 14 November 2011), and why he had not been placed in inpatient care until his treatment, despite the fact that this had been ordered by the doctors.

18. On 9 May 2014 the Tartu Court of Appeal dismissed the applicant’s appeal, finding no grounds to depart from the reasoning of the Tartu Administrative Court.

19. On 25 May 2014, the applicant lodged an appeal on points of law with the Supreme Court, which on 11 September 2014 declined to examine it.

B. Relevant domestic law

1. Imprisonment Act

20. Section 53 of the Imprisonment Act provides that the availability of emergency care must be guaranteed twenty-four hours a day. In the event that prisoners need treatment that cannot be provided in prison, the prison doctor must refer them to providers of the relevant specialised medical care.

2. Minister of Social Affairs Regulation no. 72 of 30 November 2000 – “Internal rules of prison”

21. Section 9 of the Minister of Social Affairs Regulation no. 72 of 30 November 2000 – “Internal rules of prison” (Vangla sisekorraeekiri) – provides:

Ҥ 9. Health check

(1) The physical and mental health of a prisoner is checked according to need. A prisoner who has fallen ill shall be treated within the possibilities of the prison service. ...

(2) If a prisoner needs treatment for the provision of which the prison service has no possibility, then on the basis of a doctor’s referral letter the prisoner shall be escorted under guard to receive health care at the relevant health-care facility in another prison or a health-care institution.

(3) The following shall be organised in a prison:

1) clinical examination of prisoners for ascertaining the need for treatment and capacity for work;

2) general and specialised outpatient and inpatient treatment; ...”

3. Minister of Social Affairs Regulation no. 46 of 21 August 2008 – “Requirements for the availability of health-care services and for maintaining waiting lists for treatment”

22. Section 3 of the Minister of Social Affairs Regulation no. 46 of 21 August 2008 – “Requirements for the availability of health-care services and for maintaining waiting lists for treatment” (Tervishoiuteenuste kättesaadavuse ja ravijärjekorra pidamise nõuded) – provides:

Ҥ 3. General requirements for the availability of health-care services

(1) Health-care services may be provided on the basis of a waiting list if a provider of a health-care service has no possibility to provide that service immediately and postponing the provision of the service until a set time does not result in the deterioration of a patient’s condition and does not affect the progress of the disease or worsen the prognosis in respect of the disease.

(2) A patient registered on the waiting list must receive the necessary health-care services within a minimum period of time on the basis of the medical need for those health-care services and the following principles:

1) patients with a similar medical need are provided with the health-care services under the same conditions;

2) the term scheduled for a patient to receive the health-care services depends on the medical need for the health-care services. ...”

4. Minister of Social Affairs Regulation no. 56 of 18 September 2008 – “The conditions and procedure for documenting the provision of health-care services and the maintenance of such documents”

23. Section 29 of the Minister of Social Affairs Regulation no. 56 of 18 September 2008 – “The conditions and procedure for documenting the provision of health-care services and the maintenance of such documents” (Tervishoiuteenuse osutamise dokumenteerimise ning nende dokumentide säilitamise tingimused ja kord) – provides that a referral letter is a document drawn up in the course of the provision of outpatient health-care services and serves as the basis for the referral of a patient for examination, consultation with another doctor, or inpatient treatment.

COMPLAINT

24. The applicant complained under Article 3 of the Convention that by failing to provide him with the prompt medical treatment ordered by doctors and placing him in a cell instead of in inpatient care, the prison officials had caused him unnecessary pain and suffering, as well as harm to his health, which had amounted to inhuman and degrading treatment.

THE LAW

Alleged violation of Article 3 of the Convention

25. The applicant complained under Article 3 of the Convention that he had not obtained timely medical care while in prison, which had caused him unnecessary pain and suffering.

26. Article 3 of the Convention reads as follows:

“No one shall be subjected to torture or to inhuman or degrading treatment or punishment.”

1. The parties’ arguments

(a) The Government

27. The Government submitted that the applicant had not been subjected to inhuman or degrading treatment. Instead, he had received timely medical care both in the prison and in the hospital, in line with the relevant domestic legislation (see paragraphs 20 to 22 above). He had been treated in a civilian hospital in accordance with the general waiting list – that is to say under similar conditions to those valid for all patients, including people not serving a prison sentence. Staying in his regular prison cell rather than in the prison medical department had not had any negative effect on the applicant’s health, as the cells in the latter were no different from the regular prison cells, and the applicant had not needed constant medical supervision. In any event, the applicant had been examined on numerous occasions between 11 and 18 November 2011.

28. The Government held that the hospital personnel had never instructed that the applicant be immediately transferred to Tallinn or be kept in the hospital’s inpatient care department or brought back to hospital Y on 14 November 2011. There was no record of that in the applicant’s medical file, nor was there a referral letter (see paragraph 23 above) in respect of any other hospital. The treatment in Tallinn had been referred to as a suggestion rather than an acute medical need. The Government asserted that it was the health-care professionals who had decided on the treatment needs of a patient and that the duty of the prison was to guarantee that those needs were served. In the case at hand, the documented medical instructions had been followed.

29. The Government also presented medical opinions from two doctors (a head doctor at hospital Y and a head doctor of the faciomaxillary surgery unit of the North Estonia Medical Centre (Põhja-Eesti Regionaalhaigla), dated 1 and 26 July 2016, respectively) confirming that the applicant’s injury had not required immediate treatment and that the seven-day period (between 11 and 18 November) could not have been sufficient for the applicant’s fractured bones to become consolidated to the extent that they would have to be “re-broken” again, as alleged by the applicant. According to the latter doctor, it was quite common for the jawbone to be set by a doctor seven days after injury.

(b) The applicant

30. The applicant submitted that he had not been provided with timely medical care. Instead of being taken to Tallinn for immediate treatment, he had had to wait for seven days to return to hospital Y. The reference in the medical file to treatment in Tallinn had not been a mere recommendation, but a clear indication that the doctors at hospital Y had considered his situation as an emergency which needed to be addressed immediately. The lack of information about who had decided to overrule such an instruction (and for what reason) indicated that it had been done arbitrarily by the prison officials.

31. He further submitted that he had been left alone and in acute pain in his prison cell since the injury had occurred. Even if his cell had been similar to the cell in the prison’s medical department, he could have benefitted from the attention and assistance of the prison’s medical staff. He had been given no clear treatment plan to follow, as rinsing one’s mouth and taking painkillers did not qualify as such.

32. According to the applicant, by the time he had been taken back to hospital Y, his jaw had begun to heal incorrectly and it had had to be re-broken. This had caused unnecessary pain, which could have been prevented had the prison officials provided him with prompt medical treatment on 11 November 2011 (as the emergency department doctors had considered necessary) or on 14 November 2011 (as the emergency department doctors had instructed after the prison officers had refused to take the applicant to Tallinn for an operation). There was no information to the effect that dental treatment had been unavailable before 18 November 2011. Furthermore, no assessment had ever been made of his specific medical needs, as referred to in section 3(2)(2) of the “Requirements for availability of health-care services and for maintaining waiting lists for treatment” (see paragraph 22 above); such an assessment could have warranted him a higher place in the waiting list.

33. The applicant complained that he had lasting problems with diction and the positioning of his teeth.

2. The Court’s assessment

(a) General principles

34. The Court reiterates that Article 3 of the Convention enshrines one of the most fundamental values of a democratic society. It prohibits in absolute terms torture or inhuman or degrading treatment or punishment, irrespective of the circumstances and the victim’s behaviour (see, for example, Svinarenko and Slyadnev v. Russia [GC], nos. 32541/08 and 43441/08, § 113, ECHR 2014 (extracts), and Muršić v. Croatia [GC], no. 7334/13, § 96, ECHR 2016). Ill-treatment must, however, attain a minimum level of severity if it is to fall within the scope of Article 3. The assessment of this minimum is relative: it depends on all the circumstances of the case, such as the duration of the treatment, its physical and mental effects and, in some cases, the sex, age and state of health of the victim (see, among other authorities, Muršić, cited above, § 97, and Nogin v. Russia, no. 58530/08, § 81, 15 January 2015).

35. The State must ensure that a person is detained in conditions which are compatible with respect for human dignity, that the manner and method of the execution of the measure of deprivation of liberty do not subject him to distress or hardship of an intensity exceeding the unavoidable level of suffering inherent in detention and that, given the practical demands of imprisonment, his health and well-being are adequately secured (see Stanev v. Bulgaria [GC], no. 36760/06, 204, ECHR 2012; Kudła v. Poland [GC], no. 30210/96, § 94, ECHR 2000-X; and Popov v. Russia, no. 26853/04, § 208, 13 July 2006). The Court reiterates in this regard that even though Article 3 does not entitle a detainee to be released “on compassionate grounds”, it has always interpreted the requirement to secure the health and well-being of detainees, among other things, as an obligation on the part of the State to provide detainees with the requisite medical assistance (see Mozer v. the Republic of Moldova and Russia [GC], no. 11138/10, § 178, ECHR 2016, and Khalvash v. Russia, no. 32917/13, § 55, 15 December 2015).

36. The “adequacy” of medical assistance remains the most difficult element to determine. The Court insists that, in particular, authorities must ensure that diagnosis and care are prompt and accurate (see Khalvash, cited above, § 56; Khatayev v. Russia, no. 56994/09, § 85, 11 October 2011; Yevgeniy Alekseyenko v. Russia, no. 41833/04, § 100, 27 January 2011; Gladkiy v. Russia, no. 3242/03, § 84, 21 December 2010; see also Hummatov v. Azerbaijan, nos. 9852/03 and 13413/04, § 115, 29 November 2007; Melnik v. Ukraine, no. 72286/01, §§ 104-106, 28 March 2006) and that, where necessitated by the nature of a medical condition, supervision is regular and systematic and involves a comprehensive treatment strategy aimed at adequately treating the detainee’s health problems or preventing their aggravation (see Nogin, cited above, § 84).

37. 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 v. Russia [GC], no. 47152/06, § 138, 23 March 2016, and Aleksanyan v. Russia, no. 46468/06, § 140, 22 December 2008). In its assessment the Court gives thorough scrutiny to the question concerning the compliance with recommendations and prescriptions issued by medical professionals, in the light of specific allegations made by the applicant and with due regard to the gravity of the medical condition (see Valeriy Samoylov v. Russia, no. 57541/09, § 79, 24 January 2012).

(b) Application of those principles in the present case

38. The Court notes that in the present case the applicant did not dispute the quality of the treatment, but argued that he should have received such treatment sooner. In this connection he asserted that the prison authorities had disregarded the medical instructions given by the medical personnel of hospital Y.

39. The Court observes that the prison authorities reacted promptly to the injury sustained by the applicant by firstly having him examined (by means of an X-ray test) in the prison and then, about two hours after the injury, taking him to hospital Y for further examination. At the hospital, another X-ray was taken, his jaw was bandaged and he received pain medication (see paragraphs 4 and 5 above).

40. Having examined the medical documents provided by the applicant, particularly the medical file dated 11 November 2011 from hospital Y (see paragraph 5 above), the Court considers that besides a reference to recommended treatment in Tallinn, those documents contain nothing to prove the applicant’s allegations concerning his stay in the hospital or being given a strict deadline to return (see paragraphs 5-7 above). With regard to the recommendation about treatment in Tallinn, the Court notes that this was written next to the comment that the applicant should have a consultation with Dr N. No conclusion can be drawn as to whether those courses of treatment – a consultation with Dr N. and treatment in Tallinn – were supposed to be undertaken simultaneously or whether they were considered as alternatives to each other. Furthermore, there is no indication that any treatment in Tallinn would have to be immediate. However, it is noteworthy that in the “decision” section of the medical file the box for “other” has been ticked, instead of the option of referring the patient for further treatment in the same or some other medical facility.

41. In the light of the foregoing and the material in its possession, the Court finds no basis on which to conclude that the prison authorities failed to comply with the medical orders given by the doctors of hospital Y (compare Nogin, cited above, § 92, 15 January 2015, and Yakovenko v. Ukraine, no. 15825/06, §§ 99-101, 25 October 2007).

42. Concerning the seven-day waiting period before the applicant was taken to an appointment with Dr N., the Court refers to its established case-law, according to which medical treatment within prison facilities must be appropriate and comparable to the quality of treatment which the State authorities have committed themselves to provide to the entirety of the population. Nevertheless, this does not mean that each detainee must be guaranteed the same medical treatment that is available in the best health establishments outside prison facilities (see Blokhin, cited above, § 137). In this connection the Court finds convincing the Government’s arguments that the applicant – whose case was not regarded by the medical personnel as an emergency requiring immediate action (see paragraph 28 above) – received the necessary medical assistance, after joining the general waiting list applicable to all patients, and that the waiting time could not have been long enough for his jawbone to have become consolidated (see paragraphs 22, 27 and 29 above). The Court also notes that the applicant acknowledged not having requested that the prison authorities to expedite his treatment (see paragraph 15 above).

43. Against this background, and in view of the medical care received at the time (see paragraphs 4 and 5 above), the Court finds no reasons to conclude that the seven-day waiting period was excessively long. Furthermore, there is nothing to suggest that the fact that the applicant remained in his regular accommodation cell rather than in the prison’s medical department aggravated his condition.

44. Lastly, the applicant did not substantiate his allegations of long-term health problems resulting from his injury (see paragraph 33 above). In any event, the Court finds no basis to conclude that any such health issues could be linked to the waiting period between the injury and the appointment on 18 November 2011.

45. In the light of the above reasoning, the Court finds no grounds for departing from the conclusions of the domestic courts. It thus follows that the application is manifestly ill-founded and must be rejected in accordance with Article 35 §§ 3 (a) and 4 of the Convention.

For these reasons, the Court, unanimously,

Declares the application inadmissible.

Done in English and notified in writing on 22 March 2018.

Hasan BakırcıLedi Bianku
              Deputy RegistrarPresident

Full & Egal Universal Law Academy