SECOND SECTION

CASE OF EBEDÄ°N ABÄ° v. TURKEY

( Application no. 10839/09 )

JUDGMENT

STRASBOURG

13 March 2018

FINAL

13/06/2018

This judgment bec a me final in the circumstances set out in Article 44 § 2 of the Convention. It may be subject to editorial revision.

In the case of Ebedin Abi v. Turkey ,

The European Court of Human Rights ( Second Section ), sitting as a Chamber composed of:

Robert Spano, President, Paul Lemmens, Ledi Bianku, Işıl Karakaş, Nebojša Vučinić, Valeriu Griţco, Stéphanie Mourou-Vikström, judges, and Hasan Bakırcı , Deputy Section Registrar ,

Having deliberated in private on 13 March 2018 ,

Delivers the following judgment, which was adopted on that date:

PROCEDURE

1. The case originated in an application (no. 10839/09) against the Republic of Turkey lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by a Turkish national, Mr Ebedin Abi (“the applicant”), on 24 December 2008.

2. The applicant was represented by Ms S. Coşkun, a lawyer practising in Ankara. The Turkish Government (“the Government”) were represented by their Agent .

3. On 7 July 2014 notice of the complaint concerning Article 3 of the Convention was given to the Government and the remainder of the application was declared inadmissible pursuant to Rule 54 § 3 of the Rules of Court.

THE FACTS

I. THE CIRCUMSTANCES OF THE CASE

1 . The applicant was born in 1970 and is detained in K ı r ı kkale.

2 . He suffers from type- 2 diabetes [1] and coronar y heart disease [2] . He has in the past undergone coronary angioplasty.

3 . According to a medical report issued on 29 June 2004 by the Gaziantep university hospital , the applic ant ’ s state of health required him to follow one diet for his diabetes and a nother one for his coronar y disease, and to live in a well- ventilated environment free of tobacco smoke.

4 . On 30 April 2008 the applic ant was placed in the Erzurum H-type prison , where he remained until 6 March 2009, serving a term for terroris t offences .

5 . On 17 July 2008 the applic ant was taken to the cardiology department of the Atatürk university hospital in Erzurum ( “ Erzurum hospital” ) for blood tests and an echocardiogram .

6 . A report drawn up on 24 July 2008 by the Erzurum hospital ’ s health board pointed out that owing to his cardiac issues the applicant had to adhere to a special anti-cholesterol diet with high poultry meat and vegetable content and low levels of beef and saturated fats. The report mention ed that if the prison in which the applic ant had been placed offered a wide choice of daily menus it would be unnecessary to transfer the applicant to another prison providing such facilities . It added that on the other hand, if the prison only offered one standard menu, the Erzurum hospital ’ s health board would hold a further meeting in order to decide whether the applicant should be transferred to another prison, after ascertaining the view of a dietician on the cholesterol content of the standard menu.

7 . On an unspecified date the applic ant, arguing that the meal served in prison was incompatible with his medically prescri bed diet , asked the prison authorities to send samples to the Ministry of Justice and the Human Rights C ommission of the Grande National Assembly of Turkey .

8 . On 24 October 2008 the prison disciplinary board rejected his request on the grounds that the foodstuffs would spoil very quickly, before reaching their destination. That board pointed out that the applicant could lodge a complaint by mail with the aforementioned institutions in order to inform them of his griev ances concerning the meals served in prison.

9 . Th e applic ant appealed against that decision . On 7 November 2008 the Erzurum judge responsible for the execution of sentences ( “ the judge responsible for the execution of sentences ” ) dismissed the appeal . On 5 December 2008 the Erzurum Assize Court (“ the Assize Court” ) upheld the dismissal decision given by the judge responsible for the execution of sentences.

10 . Meanwhile, on 24 November 2008, the applic ant had been taken to the eme rgenc y department of Erzurum hospital complaining of chest pains . On 5 December 2008 he underwent an exercise electrocardiogram .

11 . On an unspecified date the applic ant lodged a complaint with the judge responsible for the execution of sentences about the refus al by the prison authorities, de spite his m any requests, to provide him with meals compatible with his medically prescribed diet , which he said formed an integral part of his medical treatment. He also complained about his difficulties in obtaining medication . Th e applic ant stated the following, inter alia :

“ ... m y state of health [ is poor ]; the prison authorities informed me that I would be provided with meals compatible with my diet, but that has not happened ; this can be noted from surveillance camera footage; I was not provided with the menu list when I wanted to submit it to the Ministry for examination . ”

12 . On 2 January 2009 the judge responsible for the execution of sentences a llowed the applic ant ’ s request . That judge referred in his decision to a document which the prison authorities had drawn up for the attention of the Erzurum public prosecutor ’ s office , stating the following :

“ ... medically prescri bed diets cannot be prepared in [ our ] prison ’ s kitchen ; we can only cook unsalted and unspiced versions of the meals prepared for the other [ prisoners ] . Extra potatoes , boiled eggs and tomatoes are sometimes provided . ”

13 . The judge responsible for the execution of sentences pointed out that the prison had not indicated in that document whether or not the meals contained fats, which made it impossible to assess their cholesterol content . In view of the impossibility of ascertain ing whether meals prepared in that manner were compatible with the medical prescriptions in qu es tion , he ord ered that the standard menu should be examined by a dietician and, if that menu proved incompatible with the applic ant ’ s diet , that the applicant should be provided with a n appropriate menu.

14 . On 5 January 2009 the Erzurum public prosecutor ( “ the prosecutor ” ) appealed against the decision of 2 January 2009. On 8 January 2009 the judge responsible for the execution of sentences dismissed that appeal .

15 . On the same day the prosecutor lodged a fresh appeal against the decision of 8 January 2009, this time with the Assize Court . He argued as follows : the meals were prepared in the prison kitchen ; the daily allowance per prisoner, which totalled three Turkish lir as (TRY – about 1 . 40 euro at the material time ) , was only sufficient t o prepare one type of meal per day, which meant that the prisoners could not be offered several types of menus ; menus could not be prepared for the medically prescri bed diets for a total of thirty-eight individuals detained in the same prison , and only an unsalted, fat-free and unspiced version of the standard menu was on offer . According to the prosecutor , the prison would only be able to improve its service in that respect if the amount of the daily allowance were increased .

16 . On 9 January 2009 the Assize Court followed the prosecutor ’ s reasoning and quashed the decisions given by the judge responsible for the execution of sentences on 2 and 8 January 2009.

17 . Furthermore , according to the weekly lists of standard menus for the weeks of 24 February 2009 and 3 March 2009, the meals served to prisoners in the Erzurum Prison had mainly consisted of beef, fri ed food and starches: poultry meat had only been served once a week and the menus had comp rised minimal fresh vegetables .

II. RELEVANT DOMESTIC LAW

18 . In its relevant articles in force at the material time, the regulations enacted by the Ministry of Justice on the daily allowance for convicted prisoners, detainees and prison staff ( OG No. 25978 of 26 October 2005) provided as follows:

Amount of daily allowance Article 5

The amount of the daily allowance shall be calculated in cooperation with the Ministry of Health, upon analysis of daily calorie requirements and the available budget .

Daily allowance for prisoners suffering from an illness Article 9

C on victed prisoners and detainees suffering from disease shall be served foodstuffs as decided by the prison doctor .

19 . The Decree enacted by the Committee of Ministers on the management of prisons and the execution of sentences and preventive measures (O G No. 26131 of 6 April 2006) provides as follows:

Titre II Tasks , competences and responsibilities of prison staff Health services Article 25-7

Dietician ’ s d uties : taking the requisite action to ensure health y nutri tion in line with the prisoners ’ and prison staff ’ s calorie requirements, plan n i ng their daily, weekly and monthly allowances, ensuring the preparation of meals compatible with the patient ’ s state of health , and taking any other action required for that purpose .

THE LAW

I. ALLEGED VIOLATION OF ARTICLE 3 OF THE CONVENTION

20 . The applicant alleged that the authorities ’ refusal to provide him with meals compatible with his medically prescribed diet had infringed his right to live a healthy life, in breach of Article 2 of the Convention. Moreover, he submitted that his continued detention in the particular circumstances of the case had amounted to a violation of Article 5 of the Convention.

21 . Th e Government conteste d that argument .

22 . The Court considers that the complaints put forward by the applicant should be assessed solely from the angle of A rticle 3 of the Convention since, b eing the master of the characterisation to be given in law to the facts of a case, it is not bound by the characterisation given by an applicant or a Government ( see Lopes de Sousa Fernandes v . Portugal [GC], n o. 56080/13, § 145, E CH R 2017 ).

A rticle 3 of the Convention reads as follows :

“ N o one shall be subjected to torture or to inhuman or degrading treatment or punishmen t. ”

A. Admissibility

23 . Th e Government s ubmitted that it had not been demonstrated that the applic ant ’ s state of health had worsened because he had not followed the diet prescribed by the doctors and that his conditions of detention had not attain ed the severity t hreshold for the application of A rticle 3 of the Convention. They considered the application manifest ly ill- founded .

24 . The Court considers that the objection raised by the Government concerning the applicability of A rticle 3 of the Convention in the present case raises factual and legal issues which cannot be settled at the admissibility stage . Accordingly , the assessment of that objection should be joined to that of the merits of the case. Noting , moreover , that the application is not manifest ly ill- founded within the meaning of A rticle 35 § 3 ( a) of the Convention and that it is not inadmissible on any other grounds , the Court declares it admissi ble.

B. Merits

25 . Th e applicant complained of the authorities ’ refusal to provide him with meals compatible with his medical prescriptions and of a deterioration in his s tat e of health . He submitted that that situation had amounted to a violation of A rticle 3 of the Convention.

26 . Th e Government conteste d that argument . They explained that, like the other prisoners, the applic ant had had the option of eating in the prison canteen , which had offered a wide range of foodstuffs, including fruit and vegetables , and that he could also have had recourse to an outside supplier in order to obtain the foodstuffs recommended by the doctors .

27 . The Court r eiterates the principles established in its relevant case-law .

As it has ruled on many previous occasions , A rticle 3 of the Convention must be regarded as one of the most fundamental provisions of the Convention and as enshrining core values of the democratic societies making up the Council of Europe ( see Pretty v . the Uni ted Kingdom , n o. 2346/02, § 49, E CH R 2002 ‑ III). In contrast to the other provisions in the Convention, it is cast in absolute terms, without exception or proviso, or the possibility of derogation under Article 15 of the Convention ( see , among other aut ho r iti es, Chahal v . the Uni ted Kingdom , 15 November 1996, § 79, Re ports of Judgments and Decisions 1996 ‑ V).

28 . Ill-treatment must attain a minimum level of severity if it is to fall within the scope of Article 3 of the Convention. The assessment of this minimum level of severity is, in the nature of things, 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 aut ho r iti es, Mikadz e v . Russia , n o. 52697/99, § 108, 7 June 2007, and Dybeku v . Albania , n o. 41153/06, § 36, 18 December 2007). For a punishment or the accompanying treatment to b e “ inhuman ” or “ degrading ” , the suffering and humiliation inflicted must in any event go beyond th e unavoid able level of suffering and humiliation inherent in a ny form of legitimate treatment or punishment .

29 . As regards, in particular , persons deprived of their liberty , under A rticle 3 of the Convention the State must ensure that a person is detained in conditions which are compatible with respect for his human dignity, that the manner and method of the execution of the measure 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 by, among other things, providing him with the requisite medical assistance ( see KudÅ‚a v. Poland [GC], n o. 30210/96, § 94, ECHR 2000 ‑ XI ; Mouisel v . France , n o. 67263/01, § 40, E CH R 2002 ‑ IX; and Tekin Yıldız v. Turkey , n o. 22913/04, § 71, 10 November 2005). Thus the lack of appropri ate medical care and , more broadly, the detention of persons suffering from disease in inadequate conditions may, in principle, amount to treatment contrary to A rticle 3 ( see, for example , Ä°lhan v. Turkey [GC], n o. 22277/93, § 87, E CH R 2000 ‑ VII ; Price v . the Uni ted Kingdom , n o. 33394/96, § 30, E CH R 2001 ‑ VII ; and Naumenko v . Ukraine , n o. 42023/98, § 112, 10 February 2004). I t is incumbent on the State to organise its penitentiary system in such a way as to ensure respect for the dignity of detainees, regardless of financial or logistical difficulties (see, mutatis mutandis , Benediktov v. Russia , no. 106/02, § 37, 10 May 2007, and Sukhovoy v. Russia , no. 63955/00, § 31, 27 March 2008).

31 . In the present case , the Court observe s that it i s not disputed between the parties that the applic ant ’ s state of health required treatment for his various illnesses . It will therefore consid er, in the light of the principles set out above , whether the applic ant was given sufficient and adequate medical care during his custody in Erzurum Prison and whether the authorities ’ refusal to provide him with meals complying with his medical prescriptions was compatible with A rticle 3 of the Convention.

32 . The Court first of all note s with satisfaction that the applic ant was transferred to various hospital s whenever necessary ( see paragraphs 8 and 13 above ).

35 . The Court also observe s that the applicant complained to the judge responsible for the execution of sentences about the prison authorities ’ attitude to him . That judge noted that the prison authorities had served the applic ant and thirty -seven other prisoners suffering from disease the same meals as the healthy prisoners, the only difference being that their meals had contained a lower level of salt and s pices. He allowed the applicant ’ s request on the grounds that it had not been established how those salt- and spice-free meals complied with the latter ’ s medically prescribed diet , and that the prison authorities had not specified whether or not those meals had contained fats ( see paragraphs 16 and 17 above ).

36 . The Court then observe s that the prosecutor appealed to the Assize Court against the decision of the judge responsible for the execution of sentences on the grounds that the prison authorities were unable to prepare and serve a special menu because of insufficient finances , given the prisoners ’ daily allowance of only 3 TRY. In his appeal, the prosecutor pointed out that it would only be feasible to prepare menus compatible with the medically prescri bed diets if the amount of th at allowance were increased . The Assize Court upheld the prosecutor ’ s appeal , confirming that the prison had been providing the applicant with fat-, salt- and s pice -free meal s.

37 . On that point, the Court r eiterate s its case-law on requirements in terms of the adequacy of prisoners ’ allowances, to the effect that for long prison term s like the applic ant ’ s , the competent authorities must ensure the provision of adequate and sufficient daily nourishment , if necessary by establishing an in-house catering structure for prisoners ( see , mutatis mutandis , Chkhartishvili v . Greece , n o. 22910/10 , § 61, 2 May 2013, and De los Santos et de la Cruz v . Greece , n os. 2134/12 and 2161/12 , § 44, 26 June 2014).

38 . The Court notes that in the present case the prison in which the applic ant was detained at the material time did indeed have a catering unit in which the meals were prepared by staff employed for the purpose . However , it observes that in view of the amount of the daily allowance granted to prisoners, the prison was not in a position to supply meals compatible with the specific requirement s of special diets for prisoners suffering from disease, notwithstanding the corresponding medical prescriptions .

39 . In that connection , the Court note s that under the prison rules, prisoners suffering from disease were entitled to foodstuffs indicated by the prison doctors. The amount of the daily allowance to be granted to prisoners suffering from disease depended on their individual medical prescriptions ( see paragraph 21 above ).

40 . In those circumstances , the Court considers that the refusal to bring the applic ant ’ s meals into line with his medical prescriptions cannot be justified for economic reason s, given that the law in force at the material time provided for a separate budget for prisoners suffering from disease .

41 . Furthermore , the Court note s that neither the prosecutor nor the Assize Court sought to ascertain whether the prison authorities had contacted the competent authorities to request an increase in the daily allowance in order to meet the dietary needs of prisoners suffering from disease , as required by la w .

42 . In any event, since the domestic courts refused to seek to ascertain whether the foodstuffs served to the applic ant were compatible with his medically prescribed diet , the Court cannot discern how they managed to conclude that the prison ’ s practice was compatible with the applicant ’ s state of health .

43 . That finding is particularly cogent because according to the documents on file, the applic ant was not the only prisoner affected by that practice . It transpires from the case file that the practice was observed without distinct ion, ignoring the specific features of the diseases from which individual prisoners were suffering . The Court takes the view that such a practice amounts to a failure by the prison in question diligently to protect the health and welfare of the persons concerned ( see paragraph 18 above ).

44 . Moreover , the Court cannot agree with the Government that the applic ant could have had meals compatible with his diet if he had ordered them from an outside supplier or eaten in the prison canteen . In that scenario the applicant would have had to pay for his sustenance out of his own pocket . The fact is that the applic ant ’ s poor state of health should not i n flict on him a heavier financial burden than that faced by healthy prisoners . The Court therefore considers that a solution involving payment by the prisoner is in compatible with the State ’ s duty to organise its penitentiary system in such a way as to ensure respect for the dignity of detainees, regardless of financial or logistical difficulties ( see , mutatis mutandis , S ukhovoy , cited above , § 31, and Benediktov , cited above , § 37).

45 . Firstly , f or the above-mentioned reasons , the Court finds therefore that by acting in the aforementioned manner , the authorities failed to take the requisite action to protect the applic ant ’ s health .

46 . Secondly , as regards the issue of the deterioration in the applic ant ’ s health as a result of his inability to follow his medically prescribed diet , the Court r eiterates that a llegations of treatment contrary to Article 3 of the Convention must be supported by appropriate evidence ( see Klaas v . Germany , 22 September 1993, § 30, Series A n o. 269 ; Erdagöz v. Turkey , 22 October 1997, § 40, Re ports 1997 ‑ VI ; Martinez Sala and Others v . Spain , n o. 58438/00, § 121, 2 November 2004 ; and Hüsniye Tekin v. Turkey , n o. 50971/99, § 43, 25 October 2005). In order to e stablish the all e ge d facts , the Court adopts the standard of proof “beyond reasonable doubt” , although such proof may follow from the coexistence of sufficiently strong, clear and concordant inferences or of similar unrebutted presumptions of fact ( see Ireland v . the Uni ted Kingdom , 18 January 1978, § 161 in fine , Series A n o. 25, and Labita v . Italy [GC], n o. 26772/95, §§ 121 and 152, E CH R 2000 ‑ IV).

47 . That having been said, the Court acknowledges that it may indeed be difficult for a prisoner to obtain medical evidence of his allegations ( see Ayan v. Turkey , n o. 24397/03, § 55, 12 October 2010) and that the difficulties encountered by an applic ant in making his case may also result from a failure by the authorities to respond effective ly to complaints which they receive ( ib id . , § 56).

48 . In that regard, the Court takes note of the Government ’ s position that no evidence had been provided of the applicant ’ s worsening state of health, that the applicant ha d not complain ed of any aggravation of his illness after the delivery of the Assize Court ’ s judgment and that the fact that the applicant had not followed his medically prescribed diet had not caused him any suffering beyond that inherent in imprisonment.

49 . In the present case the Court observe s that at the material time the applic ant had recourse to all the avail able remedie s for lodging with the national authorities his complaint s concerning the incompatibility of his meals with his diet and the worsening of his state of health resulting from his ingestion of those meals . The Cour t note s that he later raised those same issues before it, subsequently to the last-instance decision under domestic law. The Court cannot discern how, or to which authority , the applicant could have submitted his complaints more effectively . The Court notes that the national authorities were unresponsive to the many requests which the applic ant claims to have submitted with a view to receiving meals compatible with the requirements of his state of health ( see paragraphs 10 to 12 and 14 above ).

50 . Having regard to prisoners ’ inability to seek medical help at any time from a hospital of their choosing, the Court considers that it is incumbent on the domestic authorities to instruct a specialist to assess the standard menu offered by the prison in question , and at the same time to invite the applic ant to undergo a medical examination specifically linked to his complaints.

51 . Indeed , as emphasised above , the authorities did not seek to ascertain whether the nourishment provided to the applic ant was suit able or whether the failure to comply with his medically prescribed diet had had any negative effects on his state of health; in fact, on 24 November 2008 the applicant had been transferred to the emergency ward of Erzurum hospital f or chest pains ( see paragraph 13 above ).

52 . The Court further observe s that the Government failed to provide any specific explanation as regards the effects of the practice followed by the prison on the applic ant ’ s state of health, and that the domestic authorities also failed to examine that issue .

53 . The Court considers therefore that, owing to their negligence , the domestic authorities failed to take the requisite action to protect the applic ant ’ s health and well- being and that therefore they failed to provide him with appropriate conditions of detention compatible with human dignity , in breach of A rticle 3 of the Convention.

54 . The foregoing considerations are sufficient to enable the Court to conclude that the preliminary objection raised by the Government ( see paragraph 27 above ) must be rejected and to find a violation of Article 3 .

II . APPLICATION OF ARTICLE 41 OF THE CONVENTION

55 . Article 41 of the Convention provides:

“If the Court finds that there has been a violation of the Convention or the Protocols thereto, and if the internal law of the High Contracting Party concerned allows only partial reparation to be made, the Court shall, if necessary, afford just satisfaction to the injured party.”

A. Damage

56 . The applicant claimed 110,000 euros (EUR) in respect of non-pecuniary damage.

57 . The Government consider that sum exorbitant and un substantiated by the circumstances of the case.

58 . The Court considers that the applicant sustained non-pecuniary damage which cannot be sufficiently repaired by the finding of a violation. Deciding on an equitable basis, the Court awards him 5 , 000 euros (EUR) under this head .

B. Costs and expenses

59 . The applicant also claimed EUR 1,150 for the costs and expenses incurred before the domestic courts and for those incurred before the Court.

60 . The Government contested that sum.

61 . According to the Court ’ s case-law, an applicant is entitled to the reimbursement of costs and expenses only in so far as it has been shown that these have been actually and necessarily incurred and are reasonable as to quantum. In the present case, regard being had to the documents in its possession, the Court a wards the whole amount of the applic ant ’ s claim in respect of the proceedings before the domestic courts.

C. Default interest

62 . The Court considers it appropriate that the default interest rate should be based on the marginal lending rate of the European Central Bank, to which should be added three percentage points.

FOR THESE REASONS, THE COURT, UNANIMOUSLY,

1. Joins to the merits the Government ’ s objection concerning the applicability of Article 3 of the Convention, and rejects it;

2. Declares the application admissible;

3. Holds that there has been a violation of Article 3 of the Convention;

4. Holds

(a) that the respondent State is to pay the applicant, within three months from the date on which the judgment becomes final in accordance with Article 44 § 2 of the Convention, the following amounts, to be converted into Turkish liras at the rate applicable at the date of settlement:

(i) EUR 5,000 ( five thousand euros) , plus any tax that may be chargeable, in respect of non-pecuniary damage;

(ii ) EUR 1,500 ( one thousand five hundred euros), plus any tax that may be chargeable to the applicant, in respect of costs and expenses;

(b) that from the expiry of the above-mentioned three months until settlement simple interest shall be payable on the above amounts at a rate equal to the marginal lending rate of the European Central Bank during the default period plus three percentage points;

5 . Dismisses the remainder of the applicant ’ s claim for just satisfaction.

Done in Frenc h, and notified in writing on 13 March 2018 , pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.

Hasan Bakırcı Robert Spano Deputy Registrar President

[1] . Type-2 diabetes is a disease characterised by chronic hyperglycaemia, that is to say a high blood sugar level.

[2] . Disease of the coronary arteries.