SECOND SECTION

DECISION

Application no . 4243/09 Mehmet Veysi ÖZEL against Turkey

The European Court of Human Rights ( Second Section ), sitting on 22 October 2013 as a Chamber composed of:

Guido Raimondi, President, Danutė Jočienė , Peer Lorenzen , Dragoljub Popović , Işıl Karakaş , Nebojša Vučinić , Paulo Pinto de Albuquerque, judges, and Stanley Naismith , Section Registrar ,

Having regard to the above application lodged on 5 January 2009 ,

Having deliberated, decides as follows:

THE FACTS

The applicant, Mr Mehmet Veysi Özel , is a Turkish national, who was born in 1971. He is currently serving a sentence in the İzmir T-Type Prison .

The circumstances of the case

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

1. Preliminary information

On 5 September 2001 the applicant was arrested and taken into police custody on suspicion of membership of an illegal organisation , namely the Hizbullah .

On 15 October 2001 the applicant was placed in detention pending trial.

On 30 December 2009 he was convicted of attempting to undermine the constitutional order under Article 146 § 1 of the former Criminal Code. On 26 January 2011 the Court of Cassation upheld his conviction.

At the time of the events giving rise to this application, the applicant was being held in detention at the Diyarbakır High Security Prison, first pending his trial, subsequently as a convict.

2. The applicant ’ s medical condition and treatment

The applicant suffers from diabetes melli tus type-2 (formerly called non ‑ insulin dependent diabetes).

On an unspecified date in early 2008, the prison doctor at the Diyarbakır High-Security Prison referred the applicant to a hospital for what appear ed to be routine medical controls in relation to his diabetes. The prison authorities ’ initial attempt to escort him to the hospital as instructed was turned down by the applicant on the ground that the relevant tests needed to be done on an empty stomach. He therefore asked the authorities to delay his transfer to the hospital until the next morning.

On 25 March 2008, when the applicant had still not been taken to the hospital despite what he alleged to be a two-month lapse since the referral by the prison doctor, he submitted a complaint to the Diyarbakır Enforcement Judge ( infaz hakimliği ) against the prison authorities, whom he accused of neglecting his health and treatment.

On 26 March 2008 he was taken to the Diyarbakır State Hospital for his medical consultation. The applicant has not submitted a copy of the examination report.

After reviewing the applicant ’ s medical file, on 11 April 2008 the Enforcement Judge confirmed that the applicant had been undergoing regular treatment for his type-2 diabetes; t hat he had been prescribed anti ‑ diabetic medication and been provided with a glucose measurement kit to monitor regularly his glucose levels while in the prison; and that he had been referred to the hospital at the discretion of the prison doctor despite the absence of a request from the specialist at the hospital for such control. He added that in any event, the applicant had been taken to the hospital on 4 and 26 March 2008 for his controls and concluded that there had been no negligence in the provision of medical treatment to the applicant. He also ordered that a copy of the applicant ’ s complaint be sent to the Diyarbakır Public Prosecutor for an assessment on whether any criminal liability arose on the facts.

On 2 May 2008 the Diyarbakır Assize Court rejected the applicant ’ s objection to the decision of the Enforcement Judge and similarly referred the matter to the Diyarbakır Public Prosecutor.

On 29 May 2008 the Diyarbakır Public Prosecutor decided not to bring a prosecution against the relevant prison authorities, on the ground s of lack of evidence indicating neglect. On 30 October 2008 the Siverek Assize Court upheld the public prosecutor ’ s decision.

According to the documents in the case-file, the applicant also suffered from a neuropathic condition, manifesting itself as intermittent numbness in his right leg, for which he was prescribed medication by a neurolog ist on 13 March 2009. It is not clear from the information available whether this condition was related to his type-2 diabetes.

On 23 September 2009 the applicant was taken to the Diyarbakır State Hospital for a neurological consultation. Upon reviewing the CT scan and X-ray of his head, the neurologist who examined the applicant recommended that he also see a neurosurgeon. There is no copy of the neurologist ’ s examination report in the case-file. While at the hospital, the appli cant also consulted a specialist in internal medicine , who told him to continue with his medication and diet and requested to see him again in three months. He did not, however, see a neurosurgeon at the hospital on that day.

On 27 October 2009 the applicant lodged a complaint with the Diyarbakır Enforcement Judge against the prison authorities whom he accused of delaying his neurosurgical examination despite his earlier referral by the neurologist.

On 3 November 2009 the applicant was examined at the Diyarbakır State Hospital by a neurosurgeon, who recommended the placement of fibreboard under his mattress. It appears from the report in the case-file that the neurosurgeon did not make a new diagnosis or recommend a different course of treatment.

On 3 December 2009 the Diyarbakır Enforcement Judge held that since the applicant had already been examined by a neurosurgeon on 3 November 2009, there was no need to take a further decision on his claim. The judge, however, forwarded the applican t ’ s complaint to the Diyarbakır Public Prosecutor for a review of his allegations. No further information has been provided to the Court as to any decisions taken by the public prosecutor in this regard.

According to the medical reports in the file dated 31 March 2005, 8 October 2008 and 29 December 2008, the applicant was deemed capable of measuring and monitoring his own blood glucose levels with his glucose measurement kit. Furthermore, it a ppears from the report dated 29 December 2008, issued by an endocrinologist, that the applicant was prescribed rapid acting insulin (20 units in the morning and 14 units in the evening), by injection with an insulin pen, to complement his anti-diabetic drugs in minimising the rise in his blood sugar following meals. The categorisation of his diabetes as type-2, however, remained unchanged.

3. The applicant ’ s dietary requirements in the prison

In the meantime, on 2 September 2008 the applicant filed another complaint with the Diyarbakır Enforcement Judge. He argued that despite his documented medical condition, the food that he was given in the prison did not comply with the recommended diabetic diet. He therefore requested authorisation to purchase a stove to cook his own food or, alternative ly , demanded the provision of separate diet food to meet his specific needs.

On the same day, the prison management submitted a letter to the Diyarbakır Enforcement Judge, explaining that in view of the limited budget, they did not have the means to offer individualised dietary programmes to prisoners. However, the meal programme at the prison was being prepared in consultation with the prison doctor, taking also into account the needs of the inmates with special dietary requirements (who were 142 out of a total of 750). In cases where a particular meal was not appropriate for their consumption, suitable alternatives were being provided for the persons concerned; the prison canteen was also available to all inmates, who could moreover store food in the refrigerators provided in their cells. They submitted a sample weekly diet menu in support of their arguments.

Having regard to the information provided by the prison management, the applicant ’ s medical reports and the die tary plan prepared by Dicle University Hospital for patient s with diabetes, the Diyarbakır Enforcement Judge decided on 24 September 2008 to dismiss the applicant ’ s request for an individualised meal plan. On 5 November 2008 the Diyarbakır Assize Court rejected the applicant ’ s objection to the Enforcement Judge ’ s decision.

4. The applicant ’ s educational requirements in the prison

While serving his prison sentence the applicant enrolled in the Faculty of International Relations at the Open University (distance learning courses).

On an unspecified date, the applicant requested authorisation from the prison management to obtain, with his own means, an “MP4 player”, a portable media player, to study English through listening to recorded language courses, which he claimed was essential for his international relations courses.

On 4 December 2009 the General Directorate of Prisons and Detention Places of the Ministry of Justice (“the General Directorate”) refused the applicant ’ s request, on the ground s that MP4 players were not listed amongst the goods and devices authorised in prisons under the relevant regulation. The applicant was informed that he could object to this decision before the Enforcement Judge, which he did.

On 31 December 2009 the Diyarbakır Enforcement Judge dismissed the applicant ’ s request on the same ground s as the General Directorate and on 14 January 2010 the Diyarbakır Assize Court upheld this decision.

COMPLAINTS

The applicant complain ed under Article 2 of the Convention that the medical care provided to him within the penitentiary system had been inadequate and that his health had deteriorated as a result. He allege d that although he was being taken to an outside hospital very frequently on the referral of the prison doctor (at times up to twice a month), he was not receiving consistent treatment, particularly because he was not seeing the same doctor at each visit and was being prescribed different medication by different doctors. He submitted three different prescriptions in support of his claims, dated 31 March 2005, 8 October 2008 and 29 December 2008 respectively, issued by different doctors. He also complain ed of the delays in processing his referrals to the hospital.

The applicant further complain ed under the same provision of his inability to follow a dietary programme that was strictly compatible with his medical condition in the prison.

Lastly, the applicant maintain ed under Article 2 of Protocol No. 1 that the denial of authorisation to acquire an “MP4 player” to assist in his English studies constitute d a violation of his right to education .

THE LAW

A. Complaints regarding the applicant ’ s medical condition

As regards the applicant ’ s complaints under Article 2 regarding his medical condition and treatment, the Court considers in the first place that these complaints should be examined from the standpoint of Article 3 alone.

The Court reiterates that Article 3 imposes a positive obligation on the State to ensure that a person is detained in conditions which are compatible with respect for his human dignity 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 Kudła v. Poland [GC], no. 30210/96, § 94, ECHR 2000 ‑ XI; and Rivi è re v. France , no. 33834/03, § 62, 11 July 2006). Hence, a lack of appropriate medical care and, more generally, the detention in inappropriate conditions of a person who is ill may in principle amount to treatment contrary to Article 3 (see İlhan v. Turkey [GC], no. 22277/93, § 87, ECHR 2000-VII).

The Court, however, further reiterates that ill-treatment must attain a minimum level of severity if it is to fall within the scope of Article 3. The assessment of this minimum is, in the nature of things, relative; it depends on all the circumstances of the case, such as the nature and context of the treatment, the manner and method of its execution, its duration, its physical or mental effects and, in some instances, the sex, age and state of health of the victim (see Kudla , cited above, §91).

The Court observes at the outset that in the present case, it was not contested by the applicant that he was under the regular supervision of the prison doctor, who also referred him to specialists on a frequent basis for further examinations to keep his condition under control. He was, moreover, provided with a glucose measurement kit to keep track of his blood glucose levels and to alert the prison doctor in case of need. He was also put on an insulin treatment as of December 2008 to complement his oral anti-diabetic drugs, whereby he self-administered the insulin in doses as predetermined by his endocrinologist with the use of an insulin pen, which he did not complain about not being able to use. The Court acknowledges that 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 (see Hummatov v. Azerbaijan , nos. 9852/03 and 13413/04, § 116, 29 November 2007). Nevertheless, relying on the information in the case-file, the Court considers that in the instant case, the applicant ’ s condition was overall under control and that the prison authorities generally responded adequately to his medical treatment requirements, except in the two instances (over the course of eight years) specified in his application, where his referrals to the hospital for further controls took between one and two months.

While acknowledging that failure to address health problems in a timely manner and failure to follow up on diagnoses may disclose inhuman and degrading treatment in serious cases of ill-health (see Ghavtadze v. Georgia , no. 23204/07, §§ 74-98, 3 March 2009), relatively short delays in the provision of treatment may be tolerated (see Gavriliţă v. Romania , no. 10921/03, § 33, 22 June 2010), especially if the medical condition of the prisoner presented no particular urgency. In the absence of any evidence to indicate that the contested delays had caused the applicant ’ s health to deteriorate or otherwise caused him great suffering or anxiety, the Court cannot accept that they can be taken as a sign of gross negligence in the provision of the requisite medical assistance that was incompatible with human dignity. The Court stresses in this connection that in assessing the adequacy of the medical treatment available, the practical exigencies of imprisonment must also be taken into account ( Aleksanyan v. Russia , no. 46468/06, § 140, 22 December 2008).

Moreover, the applicant ’ s arguments regarding the differing prescriptions issued by different doctors cannot be upheld in the absence of any further explanations as to why he was not able to seek clarification on the course of his treatment and medication as needed from the specialists he saw regularly or the prison doctor.

As for the allegation that the applicant was not being provided with a dietary regime in line with the requirements of his medical condition, the Court reiterates at the outset that the obligation of the national authorities under Article 3 to ensure the health and well-being of prisoners extends to the provision of appropriate nutrition in prisons, taking into account, amongst other factors, the health of prisoners (see Moisejevs v. Latvia , no. 64846/01, § 78, 15 June 2006). The Court notes that the applicant has submitted a sample daily menu recommended to h im by the Dicle University Hospital, along with the diet menu offered at the prison between the dates of 23 April and 29 April 2008, for comparison. He underlined the food that he could not eat in the prison menu, including fruit juice, honey, white rice (plain and with chicken or chickpeas), bulgur, pasta and meat dish with potatoes. The Court, however, notes that almost all the food items he identified as harmful in the prison menu were amongst the recommended food by the hospital, except for the fruit juice and honey. For this reason, the Court cannot but find the ap plicant ’ s allegations to be ill ‑ founded. While the Court is prepared to accept that in principle the resources in the penitentiary system are somewhat limited and that the diet food provided at the prison might not always be to the applicant ’ s satisfaction, nothing in the evidence submitted by the applicant indicates that the disparity between the recommended diabetes diet and the food he was offered at the prison was so great as to have adversely affected his state of health o r to have caused him suffering [1] (see mutatis mutandis , Grishin v. Russia , no. 30983/02, § 76, 15 November 2007).

Having examined all the materials in its possession, the Court finds no basis to conclude that the medical assistance provided to the applicant while he was detained at the Diyarbakır High Security Prison was inadequate, that during this period his state of health deteriorated significantly beyond the natural course of his medical condition, or that he suffered extensively as a result of insufficient medical care (see, mutatis mutandis , Grishin , cited above, §§ 78-79, 15 November 2007; and Austrianu v. Romania , no. 16117/02, § 92, 12 February 2013). The Court further notes that no information has been received from the applicant since June 2010 to suggest that his condition has worsened over the last three years.

It follows that this part of the application must be rejected as being manifestly ill-founded, pursuant to Article 35 §§ 3 and 4 of the Convention.

B . Complaint regarding the denial of the right to education

The Court considers that the fact that the applicant was prevented, during the period corresponding to his lawful detention after conviction by a competent court, from having access to a portable media player to assist in his English studies cannot be construed as a deprivation of the right to education within the meaning of Article 2 of Protocol No. 1 to the Convention (see Georgiou v. Greece ( dec. ), no. 45138/98, 13 January 2000; Durmaz and Others v. Turkey ( dec. ), nos. 46506/99, 46569/99, 46570/99 and 46939/99, 4 September 2001; Arslan v. Turkey ( dec. ), no. 31320/02, 1 June 2006 ) . The Court highlights in this connection that the applicant was otherwise authorised to continue his university education through distance-learning courses . Moreover, there is no allegation that he was denied access to print material or to the internet to further his linguistic skills.

In the light of the above, the Court conclude s that this part of the application is manifestly ill-founded within the meaning of Article 35 § 3 and must be rejected in accordance with Article 35 § 4.

For these reasons, the Court unanimously

Declares the application inadmissible.

Stanley Naismith Guido Raimondi Registrar President

[1] 1. According to the information provided by the American Diabetes Association, a healthy meal plan for people with diabetes is generally the same as a healthy diet for anyone – low in fat (especially saturated and trans fat), moderate in salt and sugar, with meals based on whole grain foods, vegetables and fruit. Diabetic and "dietetic" foods generally offer no special benefit (see http://www.diabetes.org/diabetes-basics/diabetes-myths/ ) .