THIRD SECTION

DECISION

Application no . 15840/13 Aurel ALI ASAN against Romania

The European Court of Human Rights ( Third Section ), sitting on 15 September 2015 as a Chamber composed of:

Luis López Guerra , President, Kristina Pardalos , Johannes Silvis , Valeriu Griţco , Iulia Antoanella Motoc , Branko Lubarda , Mārtiņš Mits , judges, and Stephen Phillips , Section Registrar ,

Having regard to the above application lodged on 20 February 2013 ,

Having regard to the observations submitted by the respondent Government and the observations in reply submitted by the applicant,

Having deliberated, decides as follows:

THE FACTS

1. The applicant, Mr Aurel Ali Asan, is a Romanian national, who was born in 1973 and has been detained in Galați Prison since June 2010 .

2 . The Romanian Government (“the Government”) were represented by their Agent, Ms C. Brumar, from the Romanian Ministry of Foreign Affairs.

A. The circumstances of the case

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

4. The applicant has been detained since J une 2010 and, following his conviction in 2011, has been serving a twenty-three year s prison sentence.

1. First set of proceeding s seeking the suspension of the applicant ’ s prison sentence

5. On 28 November 2011 the applicant instituted proceedings before the Brăila County Court seeking the suspension of his prison sentence on medical grounds.

6. On an unspecified date the Brăila County Court asked the Mina Minovici Forensic Institute to produce a n expert medical report in respect of the applicant ’ s illnesses and to clarify if he could be treated in a prison hospital.

7 . On 17 June 2012 the Mina Minovici Forensic Institute produced the expert medical report ordered by the court. One of the conclusions of the report was that the applicant had bone tissue missing on the right side of his head since an operation to treat a head injury suffered in 200 6 . It noted that after the surgery he had been recommended to undergo an osteoplasty (surgical repair or alteration of the bone). It concluded by agreeing that an osteoplasty was recommended for the applicant ’ s condition. The surgery was not urgent but could be carried out only in a civilian hospital. The applicant could be transferred to a civilian hospital under permanent guard after an appointment had been made and he had consented in writing. Also, from a medical standpoint, it was not impossible for the applicant to serve out his sentence.

8. On 24 September 2012 the Brăila County Court dismissed the applicant ’ s action. It held that according to the conclusion of the expert medical report produced by the Mina Minovic Forensic Institute , it was not impossible for the applicant to serve out his sentence from a medical standpoint. The applicant appealed on points of law ( recurs ) against the judgment.

9 . By a final judgment of 24 January 2013 the Galați Court of Appeal dismissed the applicant ’ s appeal on points of law as ill-founded.

2. Second set of proceeding s seeking the suspension of the applicant ’ s prison sentence

10 . On 30 January 2012 the applicant instituted proceedings before the Galați County Court seeking the suspension of his prison sentence on medical grounds.

11. On 19 March 2013 the Galați County Court dismissed the applicant ’ s action. It held that according to the expert medical report produced by the Mina Minovici Forensic Institute on 17 June 2012 the applicant ’ s illness did not make it impossible for him to serve out his sentence. The applicant appealed on points of law against the judgment.

12 . By a final judgment of 26 April 2013 the Galați Court of Appeal dismissed the applicant ’ s appeal on points of law as ill-founded.

3. Request lodged by the applicant with the post-sentencing judge

13 . On 3 June 2013, relying on the Mina Minovici Forensic Institute ’ s expert report, the applicant lodged a request with the post-sentencing judge attached to Galați Prison seeking his assistance in gaining permission to undergo the surgery he needed.

14 . On 4 June 2013 the post-sentencing judge attached to Galați Prison informed the applicant that his request had been forwarded to the prison ’ s medical office in order to be re solved.

15 . On 7 June 2013, referring to the Galați Prison ’ s post-sentencing judge ’ s referral, the governor of Galați Prison informed the applicant that according to the neurosurgical evaluation report , produced in Rahova Prison Hospital for the expert medical report by the Mina Minovici Forensic Institute , the cranium cerebral trauma that had been operated on in 2006 did not need neurosurgical treatment.

16 . On 29 July 2014 the post-sentencing judge attached to Galați Prison informed the Government that except for his request of 3 June 2013 the applicant had never complained before him between 2012 and 2014 under Laws nos. 275/2006 and 254/2013 that his right to medical assistance had been breached.

4. The applicant ’ s medical evaluations

17 . On 5 June 2012 the applicant was taken to the Bucharest University Emergency Hospital for a neurological evaluation. The evaluation report concluded that the applicant was not suffering from any serious neurological problems. However , it did recommend a neurosurgical evaluation.

18 . On 22 and 29 June 2012 the applicant was taken to the Bucharest University Emergency Hospital for two neurosurgical evaluations. The evaluation reports concluded that the surgery was not urgent and that the applicant could have been operated on at any time.

19 . On 12 December 2012 the applicant was taken for a CT scan which did not disclose any internal brain haemorrhage.

20 . On 17 December 2012 the applicant was taken to the Carol Davila Central Military University Emergency Hospital for a neurosurgical evaluation. The evaluation report noted that the applicant ’ s condition was favourable and it recommended subsequent neurological evaluations with a view to an osteoplasty.

21 . From 18 to 25 October 2013 the applicant was hospitalised in Rahova Prison Hospital for a neurosurgical evaluation and in order to determine the need for an osteoplasty. The evaluation report concluded that the applicant ’ s head injury was old and therefore was not an emergency warranting neurosurgery.

22 . On 30 July 2014 the Medical Agency attached to the National Prison Service informed the Government and submitted supporting evidence attesting that from 20 September 2010 to 17 July 2014 the applicant had been repeatedly examined and treated for his medical conditions, including his head injury, in prison hospitals. Moreover, he was regularly given medical evaluations in respect of his condition.

23. On 25 June 2015 the National Prison Service informed the Government that on 19 June 2015 the applicant had been examined by a neurosurgeon at the Constan ț a County Hospital. The aforementioned neurosurgeon concluded that the applicant ’ s health was good and reiterated the chronic nature of the applicant ’ s condition and that it was not an emergency warranting neurosurgery .

B. Relevant domestic law

24. The relevant provision of the former Romanian Code of Criminal Procedure concerning suspension of prison sentences (Articles 453 and 455), are described in Aharon Schwarz v. Romania , no. 28304/02, §§ 66-67, 12 January 2010.

25 . Excerpts from the relevant legal provisions concerning the rights of detainees, namely Law no. 275/2006 on the execution of prison sentences, are given in the cases of Petrea v. Romania (no. 4792/03, §§ 21-23, 29 April 2008); Gagiu v. Romania (no. 63258/00, § 42, 24 February 2009); and Măciucă v. Romania (no. 25763/03, § 14, 26 May 2009).

26. The Execution of Prison Sentences Act ( Article 56 of Law no. 254/2013 ), which entered into force on 1 February 2014 , provide s that a detainee can complain before the post-sentencing judge against the measures taken by the prison administration in respect of his lawful rights. T he post-sentencing judge ’ s decision can also be challenged before the domestic courts.

COMPLAINT

27. R elying on Articles 2 and 8 of the Convention the applicant complained that the prison authorities had endangered his life by refusing to provide him with the required surgery for his head condition as confirmed by the expert medical report and the domestic court judgments.

THE LAW

28. The applicant complained that the prison authorities had endangered his life by refusing to provide him with the required medical treatment for his head condition. He relied on Articles 2 and 8 of the Convention.

29 . The Court reiterates that it is master of the characterisation to be given in law to the facts of the case and it does not consider itself bound by the characterisation given by an applicant (see Adnaralov v. Ukraine , no. 10493/12, § 36, 27 November 2014, and Guerra and Others v. Italy , 14967/89, § 44, 19 February 1998). Therefore, it considers that in view of the nature of the applicant ’ s complaint, it should examine it under Article 3, which reads as follows:

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

A. The parties ’ submissions

1. The Governme n t

30 . The Government submitted that the applicant had been missing bone tissue which had required an osteoplasty on the right side of his head since 2006 after he had been operated on for a head injury. The applicant had been arrested only on 10 June 2010 and had been detained in Galați Prison only from 29 June 2010. Consequently, for four years the applicant had failed to seek treatment although during all t h at time he could have sought relevant medical assistance and surgical treatment for his condition.

31 . The Government argued that the domestic prison authorities had provided the applicant with adequate medical assistance. He had been regularly treated and examined , and his medical condition had been monitored both in prison and in civilian hospitals. The need for the requested neurosurgery had also been considered. All the medical reports and expert reports produced in respect of his health had certified that the applicant ’ s condition had been good and that the osteoplasty was not an emergency.

32 . The Government also contended that the applicant had lodged a request with the post-sentencing judge for an osteoplasty. His request had been forwarded to the prison doctor and the latter had advised the applicant of his stable medical condition. Moreover, although the applicant had instituted proceedings in the domestic courts seeking the suspension of his prison sentence, he had failed to initiate any such proceedings complaining about the alleged lack of medical treatment received from the prison authorities. Furthermore, from 18 to 25 October 2013 the applicant had been hospitalised in Rahova Prison Hospital for a neurosurgical evaluation and in order to determine the need for an osteoplasty. The evaluation report produced on that occasion had concluded that the applicant ’ s head injury was old and therefore was not an emergency warranting neurosurgery.

33 . The Government submitted that the applicant ’ s medical condition had not been influenced by the conditions of his detention and that no medical evidence had been adduced of a causal link between the applicant ’ s health and the conditions of his detention.

2. The applicant

34 . The applicant submitted that the expert medical report produced by the Mina Minovici Forensic Institute and the medical evaluation carried out at the Carol Davila Central Military University Emergency Hospital had acknowledged that the osteoplasty which had been necessary for him to be able to survive his prison sentence could be carried out only in a civilian hospital. Moreover, the fact that he had been denied the impugned surgery had exposed him to life - threatening physical and psychological stress.

B. The Court ’ s assessment

35 . In so far as the Government ’ s argument that the applicant ’ s failure to initiate any court proceedings in order to complain of the alleged lack of medical treatment received in prison amount s to a preliminary objection of non-exhaustion of domestic remedies, the Court finds that it is not necessary to examine the objection because it considers that the application is in any event inadmissible for the following reasons.

36 . The Court reiterates that Article 3, while it cannot be construed as laying down a general obligation to release detainees on health grounds, imposes an obligation on the State to protect the physical well-being of persons deprived of their liberty. The Court accepts that the medical assistance available in prison may not always be of the same level as in medical institutions for the general public. Nevertheless, the State must ensure that the health of detainees is adequately secured by, inter alia , providing them with the appr opriate medical assistance (see Kudła v. Poland [GC], no. 30210/96, § 94, ECHR 2000-XI; Hurtado v. Switzerland , 28 January 1994, Series A no. 280-A; Kalashnikov v. Russia , no. 47095/99, §§ 95 and 100, ECHR 2002-VI; and Sereny v. Romania , no. 13071/06, § 84, 18 June 2013).

37. The Court notes at the outset that according to the available evidence the applicant was missing bone tissue and an osteoplasty on the right side of his head was recommended in 2006 following an operation for a head injury. Moreover, he was only detained four years later, that is to say in June 2010 . Therefore, it does not appear that the applicant ’ s medical condition was caused by his detention, or that the authorities can be held responsible for it (see Sereny , cited above, § 85).

38 . With regard to the medical treatment received by the applicant during his detention, the Court notes that according to the available medical evidence the osteoplasty was not an emergency warranting neurosurgery, it did not prevent the applicant from serving out his prison sentence and he could have been operate d on at any time. Moreover, the authorities took concrete measures to meet the applicant ’ s health needs by regularly treating him, taking him to prison or civilian doctors and by hospitalising him. Furthermore , the applicant ’ s neurological condition was constantly monitored and the need for the osteoplasty was reviewed. Additionally , there is no indication in the file of any negligence on the part of the medical services in monitoring the applicant ’ s health, or that the treatment he received had a de stabili s ing effect on his health or that it had endangered his life.

39 . Furthermore, the Court notes that the applicant did not submit any details indicating that the conditions of his detention during his imprisonment were particularly difficult, or that they caused him any hardship other than that inherent in detention.

40 . Having regard to the foregoing, the Court considers that the application is manifestly ill-founded and must be rejected in accordance with Article 35 §§ 3 and 4 of the Convention .

For these reasons, the Court, unanimously,

Declares the application inadmissible.

Done in English and notified in writing on 8 October 2015 .

Stephen Phillips Luis López Guerra Registrar President