CEDH · CASELAW;CLIN;ENG — 10 juillet 2007

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Moldova - 39806/05 Judgment 10.7.2007 [Section IV] Article 34 Hinder the exercise of the right of application Lack of appropriate regulations and deficiencies in the organisation of the Government Agent’s activity resulting in the State’s failure to comply promptly with a Rule 39 measure: violation Article 3 Degrading treatment Inhuman treatment Lack of proper medical assistance and abrupt interruption of neurological treatment administered to a remand detainee: violation [This case was referred to the Grand Chamber on 30 January 2008] Facts : In September 2004 the applicant was taken into custody on suspicion of abuse of position and power. He suffered from a number of serious illnesses (diabetes, angina, heart failure, hypertension, chronic bronchitis, pancreatitis and hepatitis) and, while in detention, was examined by various doctors who all recommended medical supervision. However, he was only able to obtain sporadic medical visits and assistance in emergencies. In March 2005 he was transferred to a prison hospital. In May 2005 a neurologist from the Republican Neurology Centre recommended his transfer to an institution where he could receive hyperbaric oxygen (HBO) therapy. However, he did not start to receive therapy until September 2005. The therapy was given at the Republican Clinical Hospital and produced positive results. It was prescribed until the end of November 2005. On 10 November 2005 the district court ordered his transfer back to the prison hospital, as the Republican Neurology Centre had made no reference to HBO therapy among its latest recommendations and indicated that the applicant’s condition had stabilised. That same evening, the Court indicated by facsimile an interim measure to the Government under Rule 39 of the Rules of Court, stating that the applicant should not be transferred back to the prison hospital until the Court had had an opportunity to examine the case. The next day a Deputy Registrar of the Court unsuccessfully tried several times to contact the Government Agent’s Office in Moldova by telephone. On the basis of the Court’s fax to the Government, the applicant requested the district court to stay the execution of its decision. However, it refused. He was transferred to the prison hospital the same day. Finally, following requests by the applicant’s lawyer and the Agent of the Government, the district court ordered the applicant’s transfer back to the Republican Neurology Centre on 14 November 2005. He was made to wait six hours before being admitted apparently because his medical file arrived late. In December 2005 the applicant’s detention pending trial was replaced with an obligation not to leave the country. In 2006 he was declared as having a second-degree disability. Law Article   3 – The applicant had been in need of constant medical supervision, without which his health had been at risk. However, he had not been given appropriate medical supervision and assistance while at the detention centre. His transfer to the neurological institution, recommended by a highly-qualified and independent doctor, had been unreasonably delayed (by four months) because the domestic courts had taken too long to obtain the opinion of a competent medical body and had not taken any measures to speed up the process. The resulting delay in beginning the recommended treatment had unnecessarily exposed the applicant to a risk to his health and must have resulted in stress and anxiety. This had been in clear contrast to the urgency with which the domestic court had decided on the applicant’s transfer back to the prison hospital. Confronted with two divergent medical opinions, the district court had chosen simply to ignore the opinion of the Republican Clinical Hospital, notwithstanding that it had been responsible for administering the HBO treatment to the applicant and was therefore the competent medical authority to advise the court on the necessity of continuing the therapy. By interrupting the treatment, which had already yielded positive results, the district court had further undermined its effectiveness and caused the applicant stress and anxiety which had gone beyond the level inherent in any deprivation of liberty. Moreover, it had not balanced the potential risk to the applicant’s health against any security risk or other reason requiring his urgent transfer to the prison. In sum, the lack of proper medical assistance at the remand centre, the incomplete treatment at the prison hospital after May 2005 and the abrupt termination of the applicant’s HBO treatment had each amounted to a violation of Article   3 of the Convention. Conclusion : violation (unanimously). Article   34 – There had been serious deficiencies in the State’s compliance with the Court’s interim measures: firstly, the apparent lack of clear provisions in the domestic law and practice requiring a domestic court to deal urgently with an interim measure; and, secondly, the shortcomings in organising the activity of the Government Agent’s Office, starting with the unavailability of officials to answer urgent calls from the Registry and resulting in its failure to react promptly to the interim measure and to ensure that the hospital authorities had had at their disposal all the medical documents necessary for the applicant’s immediate admission. In the light of the very serious risk to which he had been exposed as a result of the delay in complying with the interim measure and notwithstanding the relatively short period of such delay and the absence of adverse consequences for his life or health, the attitude of the domestic authorities had in itself jeopardised his ability to pursue his application before the Court. Conclusion : violation (six votes to one). The Court also found a violation of Article   5 § 1. Article   41 – EUR 2,080 in respect of pecuniary damage and EUR 15,000 in respect of non-pecuniary damage.   © 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