Jasmin MESIC v Slovenia - 5767/10 [2011] EHCR 2079 (29 November 2011)

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The European Court of Human Rights (Fifth Section), sitting on 22 November 2011 as a Chamber composed of:

Dean Spielmann, President,
Elisabet Fura,
Boštjan M. Zupančič,
Ann Power-Forde,
Ganna Yudkivska,
Angelika Nußberger,
André Potocki, judges,
and Claudia Westerdiek, Section Registrar,

Having regard to the decision to grant priority to the above application under Rule 41 of the Rules of Court,

The applicant, Mr Jasmin Mešić, is a Slovenian national who was born in 1979. He was represented before the Court by Odvetniška DruZba Matoz O.P. D.O.O., a law firm practising in Koper. The Slovenian Government (“the Government”) were represented by their Agent, Mrs T. Mihelič Zitko, State Attorney.

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

The applicant has been serving his sentence in the closed section of Dob Prison since 24 July 2006.

As regards the facilities available to the applicant in the cells and common areas, as well as the health care regime in the prison, the conditions imposed on the applicant regarding activities outside the cells and contact with the outside world, see the Court’s decision in the case of Lalić and Others v. Slovenia (dec.), no. 5711/10 etc., 27 September 2011.

1. Material conditions of detention in the applicant’s cells and his activities outside the cells

The applicant has been held in different cells. Until 21 November 2009 he was held in Block 4 in cells measuring 59.25 square metres, in which the number of inmates varied between thirteen and sixteen (3.7 to 4.5 square metres of personal space available to each inmate). During this time he was on five occasions placed in Block 1 – for about thirteen months altogether, mostly for security reasons. There, he was held in cells accommodating no more than four inmates at a time, while most of the time each inmate had more than seven square metres of personal space, and never less than 3.9. The applicant was held in the same conditions in Block 1 between 21 November 2009 and 13 February 2010. Afterwards he was placed in Block 3, where he was held in cells measuring 59.89 square metres and accommodating between thirteen and fourteen inmates (4.2 to 4.6 square metres of personal space available to each inmate).

The applicant has completed his primary education in prison, and is continuing with secondary education, including food-preparation and catering classes. During the initial months of his imprisonment he worked in the Pohorje Public Institute (agricultural activities and metalwork), later he attended work therapy sessions.

The applicant suffers from hepatitis C. Further to the results of the blood test which confirmed that he had this disease, received on 17 August 2006, he was referred to a specialist in order to undergo an examination. He underwent an abdominal ultrasound in December 2006. On 29 March 2010, following the applicant’s notifying the prison doctor about his hepatitis C infection, he was again referred to the specialist and underwent a further abdominal ultrasound. The doctor specialised in this field found that the applicant was chronically ill with hepatitis C, and should undergo appropriate medical treatment. A liver biopsy was scheduled for October 2010, but was postponed. Between 6 and 8 December 2010, the applicant was hospitalised in General Hospital Novo Mesto in order to undergo a liver biopsy.

According to a report dated 13 August 2010 drawn up by a prison doctor, the applicant had been treated in the prison clinic on ninety-nine occasions for various medical problems. He had not raised the issue of hepatitis C when visiting the prison doctor until March 2010. The additional report by the aforementioned doctor dated 7 December 2010 read, as far as relevant, as follows:

“[The applicant] had not shown interest in continuing treatment and had not mentioned anything connected to the treatment of hepatitis C until 29 March 2010. The disease had not manifested itself during that period. In the opinion of the representative for the patient’s rights, M. P, ... the patient’s rights under the Patient Rights Act had not been breached [in the applicant’s case]. Section 54 of the aforementioned Act states that in order to obtain health care of good quality, the patient should actively participate in his or her treatment. Jasmin Mešić certainly had not actively participated in his treatment.”

The applicant had also been visiting the prison psychiatrist and had for a while been undergoing methadone-maintenance treatment.

3. Statistics concerning prisoners’ infection with certain transmittable diseases

According to the information submitted by the Government, in 2008 eighty-one prisoners in Dob prison were tested for hepatitis B and C, and seven were tested for HIV. Two were diagnosed with hepatitis B, and fifteen with hepatitis C. In 2009 sixty-five prisoners in Dob prison were tested for hepatitis B and C, while eight were tested for HIV. One was diagnosed with hepatitis B, and seven with hepatitis C. No one was diagnosed with HIV.

For the relevant domestic law and practice, see paragraphs 33-35 and 38-47 of the Court’s judgment in the case of Štrucl and Others v. Slovenia (nos. 5903/10, 6003/10 and 6544/10, 27 September 2011), and paragraphs 34-36 of Mandić and Jović v. Slovenia (nos. 5774/10 and 5985/10, 27 September 2011), as well as Lalić and Others, cited above.

In addition, the Patient Rights Act (Official Gazette no. 15/2008, entry into force on 26 August 2008) provides for procedures for dealing with complaints concerning, inter alia, inadequate medical treatment or care. In accordance with the provisions of that Act, a patient can lodge a complaint directly with a health-care provider. If unsatisfied, he or she can complain to the Commission for Protection of Patients Rights. Ultimately, a patient whose complaint has been unsuccessful can challenge the decisions made in his or her case before the Administrative Court. The Act also regulates the work of the Representative for Patients’ Rights, whose main role is to assist, provide advice to and represent patients in the exercise of their rights provided therein.

The applicant complained that the conditions of his detention in Dob Prison amounted to a violation of Articles 3 and 8 of the Convention. In particular, he complained of severe overcrowding, which had led to a lack of personal space, poor sanitary conditions and inadequate ventilation, as well as excessive restrictions on time spent outside the cell, high temperatures in the cells, inadequate health care and psychological assistance, inadequate measures as regards the rehabilitation of drug addicts, and exposure to violence from other inmates owing to insufficient prison security. He further submitted that the situation amounted to a structural problem, which had been acknowledged by the domestic authorities.

In addition, the applicant complained that he had suffered from hepatitis C, but had not received adequate treatment while in prison.

Citing Articles 3 and 8 of the Convention, the applicant also complained of restrictions on visits, telephone conversations and correspondence.

The applicant lastly complained, under Article 13, that he did not have any effective remedy at his disposal as regards his complaints under Articles 3 and 8 of the Convention.

The Government submitted that the applicant had failed to exhaust domestic remedies, as he had not availed himself of the remedies available under the Patient Rights Act.

They also argued that the applicant’s complaint in this regard was unsubstantiated, and submitted that even in cases where infection with hepatitis C had been confirmed, treatment did not need to start immediately. A patient was considered to be chronically ill if he or she was infected for more than six months. In that case, he or she should be referred to a specialist for further examination. Even if chronically ill, a patient might not need treatment. The Government maintained that, notwithstanding the foregoing, the applicant’s complaints were primarily to be considered to be of a general nature. In this connection, they asserted that the applicant had not demonstrated that he had made any request for medical treatment which was not adequately addressed, or that he had complained about the alleged lack of medical attention to any of the prison staff.

Furthermore, the Government argued that the prison authorities had done everything in their power to prevent the transmission of diseases within the prison. However, it was primarily the duty of each individual to protect himself by acting responsibly. The transmission of a disease such as hepatitis C was not possible during ordinary social contact with other individuals, but only through unprotected sexual intercourse, or the sharing of needles, for example. As this was not a disease requiring isolation, there was no need to segregate those infected from the rest of the prison population. Such an approach was also in accordance with the recommendations of the Council of Europe and the World Health Organisation.

Lastly, the Government argued that it had been the applicant’s choice not to raise the issue of hepatitis C with the prison doctor, whom he had seen regularly: on average twice a month.

The applicant submitted that owing to overcrowding in the prison, the health care had been insufficient and those infected with hepatitis C had often not received any treatment.

The applicant also argued that although he had raised the issue before the prison administration, he had nevertheless not received adequate health care, and had had to wait several weeks for each doctor’s appointment.

The applicant further submitted that a large number of prisoners were dependent on drugs and were administrating them intravenously. Uninformed about the risk of transmitting blood-borne diseases, the prisoners often shared needles. Moreover, the infected prisoners were not segregated, which further increased the risk that disease be transmitted.

The Court does not find it necessary to examine the Government’s objections concerning the issue of exhaustion of domestic remedies, as this part of the application should in any event be declared inadmissible for the reasons set out below.

The Court notes that Article 3 imposes an obligation on the States to ensure that the health and well-being of detainees are adequately secured by, among other things, providing them with the requisite medical assistance (see Kudła v. Poland [GC], no. 30210/96, § 94, ECHR 2000-XI). The mere fact that a detainee was seen by a doctor and prescribed a certain form of treatment cannot automatically lead to the conclusion that the medical assistance was adequate. The authorities must also ensure that a comprehensive record is kept concerning the detainee’s state of health and the treatment he underwent while in detention, that the diagnoses and care are prompt and accurate, and that where necessitated by the nature of a medical condition, supervision is regular and systematic and involves a comprehensive therapeutic strategy aimed at curing the detainee’s diseases or preventing their aggravation, rather than addressing them on a symptomatic basis. The authorities must also show that the necessary conditions were created for the prescribed treatment to be actually followed through (see Visloguzov v. Ukraine, no. 32362/02, § 69, 20 May 2010 and the case-law cited therein).

Turning to the present case, the Court notes that the applicant is infected with hepatitis C, and complained that he had not received adequate medical assistance in this respect. He also made several submissions concerning the transmission of hepatitis C in Dob Prison and the lack of preventive measures taken by the prison authorities. Having regard to the fact that the medical examination carried out only three weeks after he had started serving his sentence confirmed his infection and that the applicant did not claim to have become infected with hepatitis C while in prison, the Court finds the submissions relating to the transmission of hepatitis C to be irrelevant to the present case.

As regards the medical assistance provided to the applicant, the Court observes that after being diagnosed with hepatitis C upon his arrival in prison in 2006, no further steps appear to have been taken in this connection until March 2010, when new tests and subsequently also a liver biopsy were carried out. While the fact that no medical supervision had been carried out with respect to the applicant’s infection with hepatitis C during the aforementioned period could give rise to a concern, the applicant provided no details as to whether his health had worsened possibly on that account. He also provided no evidence or details as regards his allegation that he had brought the issue of his alleged inadequate health care to the prison administration’s attention. Moreover, the applicant did not dispute or at least comment on the Government’s submissions that he had visited the prison doctor on ninety-nine occasions during the period between July 2006 and August 2010 and that only in March 2010 had he raised the issue of hepatitis C with him as a result of which liver biopsy was scheduled.

The Court would note in this connection that information relating to detention often falls within the knowledge of the domestic authorities. Accordingly, applicants might experience certain difficulties in procuring evidence to substantiate a complaint in that connection. Still, in such cases applicants may well be expected to submit at least a detailed account of the facts complained of and to provide – to the greatest possible extent – some evidence in support of their complaints (see, mutatis mutandis, Visloguzov, cited above, § 45). The Court notes that the applicant in the present case failed to substantiate his complaint alleging inadequate medical treatment and in respect of any consequences that this might have had for his well-being. The Court therefore concludes that this part of the application has not been properly substantiated and developed by the applicant (see, mutatis mutandis, Golubev v. Russia (dec.) no. 26260/02, 9 November 2006; Istratii and Others v. Moldova, nos. 8721/05, 8705/05 and 8742/05, § 49, 27 March 2007; and Valašinas v. Lithuania, no. 44558/98, § 105, ECHR 2001 VIII). Accordingly, it should be rejected as being manifestly ill-founded, pursuant to Article 35 §§ 3 and 4 of the Convention.

The Court notes that the remaining complaints are identical to those of the applicants in the case of Lalić and Others, cited above. In that case the Court has found the general conditions of detention in the closed section of Dob Prison, including the medical and psychological care provided to the prisoners held therein, as well as the arrangements concerning security measures, and the restrictions on maintaining contact with people outside the prison to be adequate vis-à-vis Convention standards. It has accordingly also rejected the applicant’s complaint under Article 13 of the Convention, as no arguable claim for the purpose of aforementioned provision could have been established.

Having regard to the similar factual background of the aforementioned case and the present application, including the fact that the present applicant always had sufficient personal space in the cells in which he was detained, namely a minimum of 3.7 square metres, these complaints should be rejected as being manifestly ill-founded pursuant to Article 35 §§ 3 (a) and 4 of the Convention.

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You are here: BAILII >> Databases >> European Court of Human Rights >> Jasmin MESIC v Slovenia - 5767/10 [2011] EHCR 2079 (29 November 2011) URL: http://www.bailii.org/eu/cases/ECHR/2011/2079.html Cite as: [2011] EHCR 2079