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THIRD
SECTION
DECISION
Application no.
2959/11
by THE ASSOCIATION FOR THE DEFENCE OF HUMAN RIGHTS
IN
ROMANIA – HELSINKI COMMITTEE
against Romania
The
European Court of Human Rights (Third Section), sitting
on 22 November 2011 as a Chamber
composed of:
Josep
Casadevall,
President,
Egbert
Myjer,
Ján
Šikuta,
Ineta
Ziemele,
Nona
Tsotsoria,
Mihai
Poalelungi,
Kristina
Pardalos,
judges,
and Marialena Tsirli,
Deputy
Section Registrar,
Having
regard to the above application lodged on 23 December 2010,
Having
deliberated, decides as follows:
THE FACTS
- The
applicant, the Association for the Defence of Human Rights in Romania
– Helsinki Committee (Asociaţia Pentru Apărarea
Drepturilor Omului în România Comitetul Helsinki
(APADOR CH) – “the applicant association”), is
a non-governmental organisation registered in Romania which lodged
the present application on behalf of Mr Ionel Garcea, who died on 19
July 2007 in prison, and on its own behalf. The applicant association
is represented before the Court by Ms Nicoleta Popescu and Mr Dan
Mihai, lawyers practising in Bucharest.
A. The circumstances of the case
- The
facts of the case, as submitted by the applicant
association, may be summarised as follows.
1. The death of Mr Ionel Garcea
- At
the material time, Mr Garcea was serving a seven-year sentence for a
rape that he had consistently denied having committed. He had no
identified relatives.
He
was diagnosed with epilepsy, personality disorder (impulsive and
explosive), polymorphic psychosis and phlebitis of both legs. During
his detention he had numerous conflicts with the prison warders, the
police and the prosecutor, on several occasions being reprimanded for
“insulting authority” (înjurii aduse cadrelor)
and for self-mutilation (beating nails into his forehead).
- In
2002, when he started serving his sentence, Mr Garcea contacted
APADOR CH from the police headquarters to inform it of his
arrest. He also wrote to the association from prison. The association
paid for his legal assistance in a civil suit for damages brought
against the State in connection with his detention in a previous case
and in criminal proceedings and occasionally gave him material
support, such as medicines, paper, pens and prepaid telephone cards.
- On
17 November 2004, members of the applicant association visited Mr
Garcea in Jilava prison hospital. He told them that in August 2004 he
had been beaten by the prison intervention force and then handcuffed
and chained to the hospital bed for two weeks. APADOR-CH complained
to the Prison Administration about Mr Garcea’s situation and
more generally about the poor living conditions in Jilava prison
hospital and the lack of adequate medical treatment for mentally ill
prisoners. It urged the Prison Administration to take measures.
- On
17 December 2004 the Prison Administration replied to APADOR-CH’s
complaint; as far as Mr Garcea’s situation was concerned, it
stated that its inquiries had not revealed any aspects in breach of
prison rules and that his immobilisation had been made necessary by
his violent behaviour and had been approved by the prison governor.
- In
the beginning of 2005 Mr Garcea attempted suicide and as a result
went into a fourth-degree coma.
- In
May 2005 Mr Garcea was transferred to Rahova Prison, after a one week
stay in Rahova prison hospital where, according to the medical record
given to the applicant association after his death, he did not
receive any treatment for his phlebitis.
- In
June 2005 Mr Garcea was operated on in a civilian hospital in order
to have metal fragments removed from his head (pieces of nails that
he had beaten into his forehead). After the operation, the doctors
performed a brain scan on Mr Garcea, only to discover that some
pieces of metal had been left inside his head. Mr Garcea underwent
another operation one month later.
- In
August 2005, members of the applicant association paid Mr Garcea
another visit. He complained to them that he had been beaten up on
several occasions by the warders. In particular, he stated that on 26
July 2005, at the end of a court hearing, the prison guards had
pushed and slapped him in order to make him move faster. He had
protested. When they had returned to the prison, the warders had
tried to push him into a separate room to beat him. He objected,
broke a window and kept a piece of the broken glass in his hand with
the intention of killing himself. The warders interpreted his gesture
as an attack and called the prison intervention forces, who chained
him to a bed and beat him until he lost consciousness. He was then
transported to Jilava hospital.
The
applicant association complained to the Prosecutor’s Office
attached to the High Court of Cassation and Justice about that
incident, but received no answer.
- Following
their visit, the members of APADOR-CH complained to the Prison
Administration about the conditions of detention in which Mr Garcea
was being held, which they considered inappropriate for his
situation. They also urged the Prison Administration to provide him
with medical treatment for his various conditions; they pointed out
that his mental health was visibly deteriorating and that despite his
repeated visits to the hospitals, he had not received adequate and
prompt medical treatment. Their willingness to provide the medicines
for him had been counteracted by the delays with which the doctors
had issued the necessary prescriptions. They contended that, in their
view, the lack of medical treatment for epilepsy and phlebitis
amounted to torture.
They
also urged the prison authorities to stop provoking violent reactions
on Mr Garcea’s part through their attitudes towards him and to
stop using force against him.
Lastly,
the members of the applicant association asked the Prosecutor’s
Office to deal more expeditiously with Mr Garcea’s complaint
about ill treatment.
- In
June 2007, while he was being held in Jilava hospital, Mr Garcea beat
another nail into his forehead. On 7 June he was operated on in a
civilian hospital, and then he was sent to Rahova prison with a
diagnosis of sepsis, post-extraction symptoms and acute
bronchopneumonia.
- From
16 to 26 June Mr Garcea’s condition continued to deteriorate.
The Rahova prison authorities decided to send him back to the
civilian hospital for examination and possibly a new operation. On 4
July he returned to Rahova, where he remained, in the prison
hospital, until his death on 19 July.
- On
27 July 2007 the applicant association asked the Prison
Administration to investigate the medical treatment given to Mr
Garcea and the cause of his death. It raised several queries, asking
in particular how Mr Garcea could have contracted
bronchopneumonia when he had been held only in hospitals for the past
few years and whether the medical treatment had been adequate, and
pointing to the lack of reaction by the medical personnel to the
continuous deterioration of Mr Garcea’s condition in June and
July 2007. The association contended that although according to Joint
Order No. 995/2007 issued by the Ministry of Justice and the Ministry
of Health on 6 June 2007 (which replaced a similar order from 2003),
a special commission had to investigate the causes of deaths in
detention, no steps had been taken to that end in Mr Garcea’s
case.
- The
applicant association asked to be informed about the progress of the
investigations, adding that the deceased had no relatives.
2. The domestic proceedings
- On
1 August 2007 APADOR-CH sent its report into Mr Garcea’s death
to the Prosecutor’s Office attached to the Bucharest County
Court in order to help the investigation into the matter.
- On
19 July 2007 the prosecutor ordered the forensic doctor to examine
the cause of Mr Garcea’s death. The medical report concluded
that the death was caused by “multiple organ failure, as a
consequence of a cerebral abscess developed because of the repeated
introduction of a metal object, necessitating neurosurgery and
lengthy stays in hospital”. The doctor also concluded that
there was not enough evidence to suggest that there had been
inadequate medical assistance in the case.
- On
12 October 2007 the file was sent to the Prosecutor’s Office
attached to the Bucharest Court of Appeal, which, on 23 February
2009, decided not to prosecute the prison doctors for improper
conduct and endangering a person incapable of taking care of himself.
He sent the file back to the prosecutor attached to the County Court
in so far as the complaint concerned allegations of ill-treatment in
detention.
- The
prosecutor’s decision was communicated to the applicant
association on 3 March 2009.
- The
association objected to the decision, but on 9 April 2009 the
complaint was dismissed by the Prosecutor General from the
Prosecutor’s Office attached to the Bucharest Court of Appeal.
He considered that the association lacked locus standi to make
the objection; he then re-examined the evidence of his own motion and
concluded that the prosecutor’s decision was correct.
- APADOR-CH
lodged a complaint with the Bucharest Court of Appeal against the
prosecutor’s decision of 9 April 2009, seeking to have the file
sent back and to have an indictment filed by the prosecutor. It
argued that Mr Garcea had not received adequate medical treatment in
prison and that his death had been caused by medical negligence in
the prison hospitals. It also argued that the investigation had not
been exhaustive, as the prosecutor had done no more than detail the
medical treatment that Mr Garcea had received, without examining
whether there had been medical negligence in his case. The applicant
association also complained that the prosecutor had not examined the
allegations of ill treatment.
- The
Court of Appeal gave its ruling on 22 July 2009. It decided that the
applicant association had locus standi, as the High Court of
Cassation and Justice had decided, in 2006, that NGOs acting in the
field of human rights had the capacity to object to steps taken by
the prosecutor. On the merits, the court found that the prosecutor’s
decision was correct, and was supported by the evidence in the file.
It therefore dismissed the applicant association’s objection
and ordered it to pay 100 Romanian lei (RON) in costs incurred by the
State and RON 1,500 in costs incurred by the accused prison doctors.
- The
applicant association appealed. It reiterated that Mr Garcea had not
received adequate medical treatment and care, which had led to his
death, and that there had been no investigation into the allegations
of ill treatment. It pointed out that the prosecutor had failed
to request an expert examination of the body. It also contested the
court of appeal’s order to pay legal costs, contending that the
evidence in the file showed that the doctors had not paid the costs
themselves, but it was their trade union that had covered their
expenses, the latter not being a party to the proceedings.
- In
a final decision of 21 October 2009 the High Court of Cassation and
Justice dismissed the appeal. It reiterated that the applicant
association had locus standi to pursue the complaint, but
found that on the merits, the prosecutor’s decisions were
correct as there were no indications in the file that the prison
doctors had failed to assist Mr Garcea or to provide him with
adequate medical treatment. The High Court also considered that the
applicant association had correctly been obliged to pay the costs
incurred by the State and the doctors in the proceedings.
- On
19 May 2010 the High Court informed the applicant association,
following a request by it, that the final decision had not yet been
drafted. On 29 June 2010 APADOR-CH received a copy of the
decision in question.
COMPLAINTS
- Relying
on Article 2 of the Convention, the applicant
association complained that Mr Garcea’s right to life
had been violated. Under the substantive head of that Article, it
submitted that Mr Garcea had not been afforded proper medical care,
compatible with his mental and physical health. In its view, the
State should not have punished Mr Garcea for having inflicted wounds
on himself or for his sometimes aggressive behaviour, but rather
should have offered him treatment. It referred to the new Code of
Criminal Procedure (Law no. 135/2010) and pointed out that, even as a
matter of policy, rather than offering support, the State chose to
punish prisoners who, like Mr Garcea, inflicted wounds on themselves,
by not giving them appropriate medical treatment if such treatment
was not available in the prison system.
- The
applicant association further invoked a procedural violation of
Article 2 of the Convention, arguing that neither the administrative
investigations nor the criminal investigations into the death of Mr
Garcea had satisfied the requirements of effectiveness enshrined in
that Article. It reiterated that the administrative commission
required by law to investigate deaths in prisons had not been set up
in Mr Garcea’s case, and that the prosecutor had failed to
order essential investigative measures, in particular an expert
examination of the body, in order to address the objections raised by
the applicant association during the proceedings. It also maintained
that it could have appointed an expert to take part in the
examination of the body.
- Under
Article 3 of the Convention, the applicant association complained
that because of the lack of medical treatment, in particular in the
last two weeks of Mr Garcea’s life, the latter had endured
significant suffering and the authorities had done nothing to
alleviate his pain. In addition, they had not carried out an
investigation into these aspects, which had been raised by the
applicant association in its complaints.
- Under
Article 6 § 1 of the Convention, the applicant association
argued that the criminal proceedings had been unfair, in so far as
the courts had refused to order an expert examination of the body to
elucidate the allegations of medical negligence raised by the
applicant association.
- Also
under Article 6, the applicant association complained about the
manner in which it had been ordered to pay costs in the proceedings,
despite the evidence adduced in the file showing that the costs had
not been actually incurred by the defendants.
- Lastly,
the applicant association submitted that it had been deprived of an
effective remedy to complain about the violations of Articles 2 and
3, in so far as the investigation into the death of Mr Garcea had
been ineffective. It relied on Article 13 of the Convention.
THE LAW
A. Complaints under Articles 2, 3, 6 and 13 of the
Convention on behalf of Mr Garcea
- The
applicant association raised several complaints concerning the
conditions of detention and the death of Mr Garcea, as well as the
investigation conducted into his detention.
- The
Court considers that it cannot, on the basis of the case file,
determine the admissibility of these complaints and that it is
therefore necessary, in accordance with Rule 54 § 2 (b) of the
Rules of Court, to give notice of this part of the application to the
respondent Government.
B. Complaint under Article 6 of the Convention on
behalf of the applicant association
- Under
Article 6 § 1 of the Convention, the applicant association
complained about the manner in which it had been ordered to pay costs
in the proceedings, despite the evidence adduced in the file showing
that the costs had not been actually incurred by the defendants.
- The
Court reiterates that although Article 6 § 1 obliges courts to
give reasons for their decisions, it cannot be understood as
requiring a detailed answer to every argument (see Van de Hurk v.
the Netherlands, 19 April 1994, §§ 59 and 61, Series A
no. 288). The extent to which this duty to give reasons applies may
vary according to the nature of the decision and must be determined
in the light of the circumstances of the case (see Grădinar
v. Moldova, no. 7170/02, § 107, 8 April 2008).
- In
the case under examination the domestic courts gave reasons, albeit
brief ones, for their order to pay costs. The mere fact that the
applicant is not satisfied with the outcome of the proceedings on
that point does not in itself suffice to render the proceedings
unfair.
- Moreover
the Court found no indication for holding that the reasons given by
the domestic courts for their decisions concerning the costs were
insufficient or inadequate for the purpose of Article 6 § 1 of
the Convention or for holding that the applicant’s arguments
were not properly or fairly examined.
- It
follows that this complaint 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
Decides to adjourn
the examination of the applicant’s
complaints on behalf of Mr Garcea;
Declares the remainder of
the application inadmissible.
Marialena Tsirli Josep
Casadevall
Deputy Registrar President
