FOURTH SECTION

CASE OF CÄ‚TÄ‚LIN EUGEN MICU v. ROMANIA

(Application no. 55104/13)

JUDGMENT

(Extracts)

STRASBOURG

5 January 2016

FINAL

05/04/2016

This judgment has become final under Article 44 § 2 of the Convention. It may be subject to editorial revision.

In the case of Cătălin Eugen Micu v. Romania,

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

András Sajó, President, Vincent A. De Gaetano, Boštjan M. Zupančič, Nona Tsotsoria, Krzysztof Wojtyczek, Egidijus Kūris, Iulia Motoc, judges, and Fatoş Aracı, Deputy Section Registrar,

Having deliberated in private on 17 November 2015,

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

PROCEDURE

1. The case originated in an application (no. 55104/13) against Romania lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by a Romanian national, Mr Cătălin Eugen Micu (“the applicant”), on 12 February 2014.

2. The applicant was represented by Mr H.A. Paidiu, a lawyer practising in Bucharest. The Romanian Government (“the Government”) were represented by their Agent, Ms C. Brumar, of the Ministry of Foreign Affairs.

3. The applicant complained, inter alia , of a violation of Article 3 of the Convention on account, specifically, of the prison overcrowding experienced by him while being held Jilava Prison, Bucharest, the fact that he contracted hepatitis C, allegedly in that prison, and the failure to provide medical treatment in prison for that condition.

4. On 13 June 2014 the application was communicated to the Government.

THE FACTS

I. THE CIRCUMSTANCES OF THE CASE

5. The applicant was born in 1973 and is detained in Drobeta Turnu Severin Prison.

6. On 28 October 2009 the applicant was convicted of rape and sentenced to ten years’ imprisonment. He has since been serving his sentence in various Romanian prisons.

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B. Monitoring of the applicant’s health

14. The medical report drawn up when the applicant was admitted to prison on 28 October 2009 indicates that he was “clinically healthy” ( clinic aparent sănătos ).

15. From 26 May to 9 June 2011 the applicant was placed in the hospital wing of Rahova Prison, Bucharest, where he underwent surgery on 3 June 2011 for an inguinal hernia on his right side.

16 . From 2 to 8 October 2012 the applicant was placed in the internal medicine unit of the hospital wing of Jilava Prison, for digestive problems. He was included in a screening programme for digestive and liver conditions. Following a medical test to identify the viral markers of hepatitis, the applicant was found to be suffering from viral hepatitis C ( purtator VHC ). A biochemical blood analysis was conducted; the results indicated that his ALAT, ASAT and GGT enzyme levels were normal, as was his total bilirubin.

17 . In a note summarising the medical tests conducted during the applicant’s hospitalisation ( scrisoare medicală ), the doctor who had treated him observed that the applicant’s disease was progressing satisfactorily and that no additional examination was necessary at that stage. He recommended that the applicant adhere to a specific diet and refrain from smoking. He prescribed symptomatic treatment, namely hepatoprotective drugs and vitamin therapy, noting that these were to be administered “if needed” ( la nevoie ). The applicant’s health was scheduled for re-examination within six months.

18. The applicant was provided with a special diet for persons suffering from disease ( norma 18 ). During January, February and March 2013 he was treated with hepatoprotective drugs.

19. On 21 February 2013 the applicant refused to be hospitalised for his health check-up. His medical records do not indicate the reasons for this refusal. However, they indicate that his health was to be re-examined within six months.

20 . From 5 to 8 August 2013 the applicant was placed in the internal medicine unit of the hospital wing of Jilava Prison for re-testing of his liver function. Blood tests showed that the ALAT and ASAT enzymes were slightly above the normal levels. On leaving the hospital wing, the applicant was advised to follow a course of hepatoprotective drugs, vitamin therapy and symptomatic treatment, to be administered if needed. He was also advised to have his condition reassessed within six months.

21. The applicant continued to be provided with the special diet for persons suffering from disease. In August, October and December 2013 he was treated with hepatoprotective drugs. The list of the applicant’s medical consultations shows that, following a medical examination on 9 December 2013 in Jilava Prison, it was recommended that he attend a medical consultation for hepatitis C in Ion Cantacusino public hospital.

22. At the end of December 2013 and in January 2014 the applicant was treated with a hepatoprotective drug and vitamins.

23. On 14 January 2014 the applicant refused to be hospitalised for re-assessment of his health with regard to the hepatitis C condition. On 19 January 2014 the applicant was examined by an internal medicine specialist, who noted that his general state of health was good.

24. On 28 January 2014 the applicant was examined by the prison doctor. The latter noted a diagnosis of “liver disease under observation” and indicated that the applicant had complained of vomiting. An anti-spasmodic drug was prescribed and administered to him.

25. On 13 February 2014 the applicant complained of palpitations. He was examined by the prison doctor, who recommended a cardiology test.

26. From 18 to 21 February 2014 the applicant was placed in the internal medicine and cardiology unit in the hospital wing of Jilava Prison, on the grounds that he required medical supervision for retro-sternal pain and that, as a smoker, he was an at-risk patient. An electrocardiogram and blood test were carried out. The biochemical blood analysis revealed that the ALAT enzyme was one-and-a-half times over the upper norm, that the ASAT enzyme was slightly over the norm and that the GGT enzyme was at normal levels.

27. A medical certificate issued at the end of his hospitalisation indicated that the applicant was suffering from unstable angina ( angor intricat de novo ) and potentially toxic liver disease ( hepatopatie posibil toxică ). The applicant was prescribed treatment for his heart disease and a course of hepatoprotective treatment, to be followed for one month.

28. In March 2014 the prison took the necessary steps to purchase the hepatoprotective drug, which was administered to the applicant at the beginning and end of May 2014. The applicant’s medical records indicate that he was treated with hepatoprotective drugs in June and July 2014.

C. The applicant’s complaint to the judge delegated to supervise observance of prisoners’ rights in Jilava Prison

29. In the meantime, on 2 August 2013 the applicant had applied to the judge delegated by the court to supervise the observance of prisoners’ rights in Jilava Prison (“the delegate judge”), complaining about his physical conditions of detention and a lack of medical treatment for his hepatitis C.

30. By a decision of 19 August 2013, the delegate judge dismissed his complaint. He confirmed the applicant’s allegations that he was being held in a cell measuring 33.96 m², occupied by twenty-seven inmates and containing four tables and six chairs. He further held that the prison authorities had attempted to improve conditions in the cell, noting that it had recently been renovated. He stated that the toilet block was separated from the cell, and that the cell received natural and artificial light. The fact that the cell was equipped with three-tier bunk beds arose from an objective cause, namely an increase in the number of detainees, and not from a lack of good will on the part of the prison authorities.

31. With regard to the medical treatment provided to the applicant, the judge noted that he received the special diet for persons suffering from disease and that he had just received vitamin therapy.

32. Following an appeal by the applicant, on 4 December 2013 the Bucharest Court of First Instance upheld, in a final judgment, the delegate judge’s decision of 19 August 2013.

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THE LAW

I. ALLEGED VIOLATION OF ARTICLE 3 OF THE CONVENTION

37. The applicant complained about the situation of overcrowding while he was held in the Bucharest-Jilava Prison. He also complained that he had contracted hepatitis C in prison and that he had not received appropriate medical treatment for this condition. He relied on Article 3 of the Convention, which provides:

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

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B. Merits

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2. The alleged contamination with the hepatitis C virus and the lack of medical treatment

(a) The parties’ submissions

50. The applicant complained that he had contracted the hepatitis C virus while in prison and that he had not received appropriate medical treatment for that condition, without however commenting on the medical treatment that had been provided.

51. The Government indicated that there was no evidence that the applicant had contracted the hepatitis C virus in prison. They accepted that there had been no mention of this illness in the medical report drawn up when the applicant entered prison. However, they explained that this medical report had been prepared on the basis of information supplied by the applicant and a general clinical examination.

52. The Government then indicated that, following the diagnosis of hepatitis C, the applicant had been regularly seen by a specialist, who had prescribed a course of medical treatment for him. They specified that the medical recommendations consisted in a treatment that was to be administered “if needed”, rather than continuously. They also indicated that the applicant in the present case had received the prescribed treatment and a special diet as recommended, and that he had refused hospitalisation on several occasions.

53. Lastly, the Government argued that the applicant had not submitted to the Court any document demonstrating that his general health had deteriorated as a result of the alleged failure to provide medical treatment. They argued that possible shortcomings by the authorities in administering the medical treatment had concerned only very short periods.

(b) The Court’s assessment

54. With reference to persons deprived of their liberty, the Court reiterates that Article 3 of the Convention imposes an obligation on the State to organise its penitentiary system in such a way as to ensure respect for the human dignity of detainees (see Sukhovoy v. Russia , no. 63955/00, § 31, 27 March 2008, and Koutalidis v. Greece , no. 18785/13, § 68, 27 November 2014). This positive obligation requires that the manner and method of the execution of the measures taken do not subject those concerned to distress or hardship of an intensity exceeding the unavoidable level of suffering inherent in detention and that, given the practical demands of imprisonment, their health and well-being are adequately secured by, among other things, providing them with the requisite medical assistance (see Mouisel v. France , no. 67263/01, § 40, ECHR 2002-IX).

55. Hence, a lack of appropriate medical care may amount to treatment contrary to Article 3 of the Convention (see İlhan v. Turkey [GC], no. 22277/93, § 87, ECHR 2000-VII, and Helhal v. France , no. 10401/12, § 48, 19 February 2015). The Court requires, firstly, that appropriate medical support be available to the patient and that the medical treatment prescribed be relevant to his or her particular situation (see Gorodnichev v. Russia , no. 52058/99, § 91, 24 May 2007). In addition, the diligence and frequency with which medical care is provided to the individual concerned are two aspects to be taken into consideration in assessing whether the treatment is compatible with the requirements of Article 3 of the Convention. These two aspects are not assessed by the Court in absolute terms; rather, it takes account in each case of the prisoner’s particular state of health. In general, deterioration in the prisoner’s health does not in itself pay a decisive role as regards compliance with Article 3 of the Convention. The Court will examine in each case whether the deterioration in the applicant’s health was attributable to shortcomings in the medical care provided (see Cirillo v. Italy , no. 36276/10, § 37, 29 January 2013).

i. As regards the alleged contamination with the hepatitis C virus in prison

56. Turning to the present case, the Court notes that in October 2012 the applicant was diagnosed by doctors as suffering from hepatitis C and that he alleges that he contracted this illness in prison. The Court considers, firstly, that the requirements on a State with regard to detainees’ health could differ depending on whether the disease contracted was transmissible (see, for example, Fűlöp v. Romania , no. 18999/04, § 34, 24 July 2012, and Ghavtadze v. Georgia , no. 23204/07, § 86, 3 March 2009, in which the applicants alleged that they had contracted tuberculosis in prison) or non-transmissible (see the case of Iamandi v. Romania , no. 25867/03, § 65, 1 June 2010, in which the applicant suffered from diabetes). The Court considers that the spread of transmissible diseases and, in particular, of tuberculosis, hepatitis and HIV/Aids, should be a public health concern, especially in the prison environment . On this matter, the Court considers it desirable that, with their consent, detainees can have access, within a reasonable time after their admission to prison, to free screening tests for hepatitis and HIV/Aids (see, to this effect, Jeladze v. Georgia , no. 1871/08, § 44, 18 December 2012, in which the Court held that a three-year delay before submitting the applicant to screening for hepatitis C amounted to negligence on the part of the State in respect of its general obligations to take effective measures to prevent the transmission of hepatitis C or other transmissible diseases in prison). Such a possibility could have had consequences for the burden of proof. No such opportunity having been available to the applicant, the Court must examine the allegations that he contracted hepatitis C in prison in the light of the evidence adduced by him.

In this connection, the Court notes that when the applicant was placed in detention in October 2009 the medical report drawn up on that occasion did not indicate that he was suffering from hepatitis C (see paragraph 14 above). According to the documents in the Court’s case file, no blood test was carried out when the applicant entered prison to establish whether he was carrying the hepatitis C virus. Furthermore, according to the Government’s assertions, which have not been contested by the applicant, his statements were taken into account when the above-mentioned medical report was prepared. In consequence, the Court considers that the applicant’s allegations that he contracted hepatitis C in prison are not substantiated by sufficient evidence (see Vartic v. Romania (no. 2) , no. 14150/08, §§ 61 and 62, 17 December 2013). Moreover, there is no evidence in the case file pointing to the time or the manner of the applicant’s contamination with hepatitis C (see Ghavtadze , cited above, § 79). Accordingly, although the disease in question was diagnosed while the applicant was under the State’s responsibility, the Court cannot deduce from that circumstance that the disease developed as a result of a failure on the State’s part to honour its positive obligations.

ii. As regards the medical care and treatment for hepatitis C provided in prison

57. The Court must now examine whether the respondent State fulfilled its positive obligation to provide the applicant with appropriate treatment suited to his condition.

58. In this connection, it reiterates that it has already held that where a detained person is diagnosed with hepatitis C, the authorities must take care to assess whether other appropriate tests should be carried out, enabling them to identify the therapeutic treatment to be given and to evaluate the prospects for recovery (see Poghossian v. Georgia , no. 9870/07, § 57, 24 February 2009; concerning the symptoms of viral hepatitis C, see Testa v. Croatia , no. 20877/04, § 10, 12 July 2007).

59. The Court notes in the present case that the applicant was treated by a qualified doctor following the diagnosis of hepatitis C. After having had the applicant’s state of health evaluated, the doctor decided, on the basis of those medical examinations, that it was unnecessary to conduct additional examinations and prescribed medical treatment to be administered when needed (see paragraph 17 above).

60. With particular regard to the applicant’s medical care, the Court notes that it consisted essentially in regular examinations, following which the doctors could analyse the information collected and adapt, as necessary, the treatment to be administered by the prison doctors. According to the medical records, the applicant was hospitalised on four occasions in the Jilava prison hospital for a reassessment of his condition (see paragraphs 20, 21, 24 and 26 above). The Court noted, however, that the applicant had not always co-operated with the authorities with regard to administration of the requisite medical treatment (see, a contrario , Cirillo, cited above, § 47). This lack of co-operation was demonstrated in the present case by the applicant’s medical records, which contained his refusals to submit to the medical examinations recommended by the doctors (see paragraphs 19 and 23 above).

61. With regard to the medical treatment administered, the Court notes that at the examinations in October 2012 and August 2013, the doctor had prescribed treatment to be administered to the applicant “when needed” and that he had also been provided with hepatoprotective drugs (see paragraphs 18, 21 and 22 above). The Court also notes that when the applicant was hospitalised in February 2014 he was prescribed a one-month course of treatment with a hepatoprotective drug (see paragraph 27 above), but that there had been a certain delay in supplying him with that drug (see paragraph 28 above). Nonetheless, the Court notes that the applicant was not deprived of medicines for any length of time and that he has not argued that his health deteriorated over the period in question because of the absence of this treatment. In view of the circumstances of the present case, the Court considers that the authorities fulfilled their obligation to provide the applicant with medical treatment suited to his condition.

62. There has accordingly been no violation of Article 3 of the Convention vis-à-vis the applicant on account of contamination with hepatitis C or any shortcomings in the medical treatment in prison.

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FOR THESE REASONS, THE COURT, UNANIMOUSLY,

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4. Holds that there has been no violation of Article 3 of the Convention with regard to the contamination with hepatitis C and the alleged absence of medical care and treatment...;

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Done in French, and notified in writing on 5 January 2016, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.

Fatoş Aracı András Sajó Deputy Section Registrar President