THIRD SECTION

DECISION

Application no . 50950/06 Diana VAN DEILENA against Latvia

The European Court of Human Rights (Third Section), sitting on 15 May 2012 as a Chamber composed of:

Josep Casadevall , President, Corneliu Bîrsan , Egbert Myjer , Ján Šikuta , Ineta Ziemele , Nona Tsotsoria , Kristina Pardalos , judges, and Marialena Tsirli , Deputy Section Registrar ,

Having regard to the above application lodged on 17 November 2006,

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, Mrs Diāna van Deilena , is a Latvian national who was born in 1975. According to the information provided by the applicant, she lives in the Valka district.

A. The circumstances of the case

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

1. Pre-trial investigation

3 . On 31 October 2001 a public prosecutor dismissed a request submitted by B.D.V. to institute criminal proceedings against the applicant, who had allegedly abused her powers as a bailiff.

4. B.D.V. appealed against the decision to the Prosecutor General. She also complained to the Head of the Clemency Board of the Chancery of the President Member of Parliament and to a member of parliament. The latter subsequently contacted the Prosecutor General, asking him to pay particular attention to the appeal.

5. On 21 February 2002 a prosecutor of the Prosecutor General ’ s Office initiated criminal proceedings against the applicant in response to B.D.V ’ s complaint.

6. On 24 January 2003 public prosecutor S.G. charged the applicant with abuse of her position as a bailiff.

7. On 12 November 2003 the same prosecutor finished drafting the bill of indictment ( apsūdzības raksts ) in the applicant ’ s case.

8 . On 19 November 2003 the criminal case was transferred to Rīga Ziemeļu District Court for adjudication.

2. Public statements of the State officials

9. Information concerning the pre-trial investigation in the applicant ’ s criminal case appeared in a number of articles published in various Latvian newspapers and was broadcast on the radio and television before the first-instance court proceedings. According to the applicant, public statements made by public prosecutor D.K.V. on 26 February 2002, by prosecutors S.G. and D.K.V. on 3 February 2004, and by the judge of the Ziemeļu District Court, N.R., and prosecutor D.K.V. on 6 July 2004 had undermined her right to be presumed innocent.

3. The trial and postponement of the execution of sentence owing to the applicant ’ s state of health

10 . On 30 September 2004 the applicant was found guilty of having abused her position as a bailiff and of fraud, and sentenced to two years and six months ’ imprisonment. She was arrested in the courtroom.

11. The applicant appealed against the lower court ’ s judgment and requested, inter alia , that the preventive measure imposed on her pending the appeal proceedings be changed. The applicant indicated that she had suffered from bronchial asthma since childhood and therefore required special medication and adequate nutrition and living conditions, needs which would not be met in detention.

12 . On 11 November 2004 the RÄ«ga Regional Court lifted the detention order pending the outcome of the appeal.

13. On 19 December 2005 the Rīga Regional Court upheld the judgment of the first-instance court and ordered the applicant ’ s imprisonment. The court noted that although the applicant ’ s state of health was to be regarded as a mitigating circumstance, it did not warrant changing the sentence to a more lenient one.

14. On 22 May 2006 the Criminal Chamber of the Supreme Court dismissed the applicant ’ s appeal on points of law.

15. On 28 July 2006 the applicant applied to the Ziemeļu District Court, requesting postponement of the execution of the prison sentence due to her poor state of health.

16. Between 14 and 25 August 2006 the applicant was hospitalised. She was diagnosed as suffering, inter alia , from persistent bronchial asthma of moderate severity, emphysema and dermatitis. Medical treatment was recommended.

17 . On 16 August 2006 the Ziemeļu District Court established that since 14 August 2006 the applicant has been hospitalised because of the exacerbation of her bronchial asthma, and postponed the execution of the sentence until the applicant ’ s discharge from hospital.

18. The applicant appealed against the decision, arguing that her state of health had deteriorated and that it would be necessary to continue rehabilitation and physical therapy even after her discharge from the hospital.

19. On 8 September 2006 the Rīga Regional Court examined the applicant ’ s ancillary complaint. The public prosecutor participating in the hearing stated that the applicant had suffered from bronchial asthma since birth, and that, according to him, although the illness could not be completely cured it would be possible to provide the applicant with the recommended inhalation treatment and medication in prison.

20. The court dismissed the applicant ’ s complaint, establishing that the applicant had been discharged from hospital on 25 August 2006 and that there was no evidence that her state of health would preclude the execution of the sentence. It also noted that the applicant had not claimed that she could not receive the recommended medication in prison.

21. On 17 October 2006 the applicant requested that the Ziemeļu District Court postpone the execution of the sentence because of a rehabilitation course she had to undergo between 23 November and 23 December 2006.

22. On 13 November 2006 the Ziemeļu District Court dismissed the request.

23. From 23 November to 23 December 2006 the applicant underwent the planned rehabilitation course.

24. On 11 January 2007 the applicant started serving her sentence in Iļğuciema Prison.

4. The applicant ’ s account on the conditions of detention and medical assistance in Iļģuciema Prison

(a) Detention between 30 September 2004 and 11 November 2004

25. In her initial complaint of 17 November 2006 the applicant alleged that during the period from 30 September 2004 until 11 November 2004 she spent in Iļģuciema Prison pending trial (see paragraphs 10 and 12 above), her state of health had deteriorated due to the poor detention conditions and absence of adequate medical assistance.

(b) Imprisonment from January 2007 to January 2008

26. From January to May 2007 the applicant was detained in Iļģuciema Prison under a partly closed imprisonment regime.

27. In her complaint of 26 February 2007 the applicant described her cell as small, insufficiently ventilated and dusty. She alleged that as a result in addition to two types of asthma medication she also had to take other medication on a daily basis, such as painkillers for headaches. Intensive use of her inhaler had had an adverse effect on her already ailing stomach.

28. As to access to emergency medical assistance, the applicant noted that when another detainee had called for emergency help, it had arrived only after an hour. The applicant was thus not sure whether the same would happen to her.

29. The applicant further stated that the doctor was available only once a week on appointment.

30. As to the access to medication, the applicant submitted that she had had to wait two weeks to receive a gel for back pain. Since medication was distributed by the medical personnel twice a day, at 10 a.m. and 6 p.m., and had to be used immediately, the applicant had problems in following the doctor ’ s recommendations that she take her medication before or after meals. She also complained that she did not have access to physiotherapy, and that she could not follow the principles of ergonomics owing to the lack of appropriate furniture in her cell.

31 . On 29 March 2007, after the applicant ’ s complaint had been communicated to the Government, the applicant ’ s husband wrote on behalf of the applicant to inform the Court that the applicant wished to complain about the fact that she had not been separated from her fellow inmates. He also referred to a letter she had sent him in which she mentioned that her back pain and asthma had worsened, but that over the last few weeks the prison medical personnel had been trying to take care of her. In particular, she was visiting the doctor on a weekly basis and had received vitamin injections in order to ease her back pain. She had also received herbal treatment to avoid excessive use of her inhalers, and was receiving additional pills for asthma on a weekly basis.

32 . On 21 December 2007, in reply to the Government ’ s observations, the applicant submitted further information which, according to her, demonstrated the poor quality of medical assistance in prison. The applicant stated that once a week she could visit the head doctor and a general practitioner, but that the latter had left the office in September 2007. She further contended that the doctors had done nothing to prevent her from increasing the use of inhalers, and that her lungs had only been checked a couple months after her arrival. She admitted having refused to have an x-ray because she had had two before her imprisonment. The applicant also referred to the fact that if she wished to consult a doctor of her choice in Iļģuciema Prison, it would take about two months to arrange.

33 . The applicant admitted that the medical unit of Iļģuciema Prison had some medication and vitamins, and that she received several types of medicine for asthma. She complained, however, that the purchase of medication was a lengthy procedure and therefore she usually purchased hers in advance; however due to the above procedure once she had had to wait several weeks to have a regular injection of vitamin B. She also mentioned that even though the head doctor had authorised the purchase of food supplements in May 2007 she had only obtained them in October 2007, when tests carried out outside the prison showed that she was hepatitis C positive. With respect to the latter condition, the applicant noted that in accordance with the instructions of her doctor, she was taking special medication and refraining from using painkillers.

34 . She also complained that her medical card did not contain complete records of the medication she had received from the nurses of the prison medical unit, such as painkillers and medication for an allergy.

35 . The applicant further contended that she had had to resolve the problem of a worn out bed herself by obtaining a wooden plank from her fellow inmate, and that she did not go on her daily walks because she was afraid of the other inmates who, according to her, considered her as a member of the law-enforcement institutions.

36. In May 2007 the applicant was transferred to a more lenient regime in Iļģuciema Prison and in January 2008 she was transferred to the Vecumnieki open prison. It appears that in August 2008, at the latest, she was released from prison.

(a) Medical treatment during imprisonment

37 . Relying on the information provided by the Prison Authority, the applicant ’ s cell, which she shared with another inmate, measured 7.95 sq m. The cell was renovated five years ago, and provided access to daylight, ventilation and toilet facilities. The applicant had an hour of outdoor exercise a day. On 30 May 2007 the applicant was transferred to another regime under which time outside was not limited and she had access to an equipped gym.

38. Pursuant to the information provided by the Prison Authority, the applicant could make an appointment with any of the prison doctors (two generalists, a gynaecologist, a psychiatrist, an ear, nose and throat specialist and a dentist) once a week. For emergencies the doctors were on call from 8:30 a.m. to 5 p.m., and medical personnel were on duty in the prison twenty-four hours a day.

39. According to the medical records kept during the applicant ’ s imprisonment in Iļģuciema Prison (which at the time of submitting the Government ’ s observations had lasted almost five months) the applicant had been examined by the prison doctors eighteen times; on fifteen of those occasions she was examined at her own request. Throughout her stay the applicant had had all the necessary medication for her bronchial asthma, and had had her own inhaler.

(b) MADEKKI reports

40 . At the Government Agent ’ s request, on 14 May 2007 the Inspectorate for Quality Control of Medical Care and Working Capability (“the MADEKKI”) assessed the adequacy of the medical assistance in Iļģuciema Prison. The conclusion stated that the inmates could have consultations with various certified medical doctors according to a schedule, and that the assistance of certified medical personnel was available twenty-four hours a day, including a certified nurse specialised in respiratory diseases. In cases of necessity inmates were admitted to a public hospital, and they could receive out-patient medical treatment at the medical unit of the prison. The latter was certified and supplied with the necessary medication.

6. Other medical records

42 . In September/October 2007 the applicant had a week ’ s leave from Iļģuciema Prison during which she underwent various out-patient medical examinations, including a comprehensive blood test and a tomography, and consulted her practitioner and neurologist. A CT analysis showed that the applicant had a spinal disc hernia. She was prescribed various medicines and physiotherapy. She was also diagnosed as hepatitis C positive.

7. Conclusions of the Ombudsman ’ s Office

43 . In letters of 5 and 23 February 2007 the applicant asked for the assistance of the Ombudsman ’ s Office in obtaining a transfer to an open-type prison. The applicant contended that as a former bailiff she was entitled to separation from other inmates, but that in Iļģuciema Prison she could not avoid contact with other prisoners during walks, while shopping at the prison shop, during workshops and doing laundry or other activities.

44 . On the basis of that complaint the Ombudsman ’ s Office launched an investigation in the framework of which he requested information from Iļģuciema Prison and arranged for a representative from the Office to visit the prison. On 14 August 2007 the Ombudsman informed the applicant that there were sufficient safeguards in place concerning the security of inmates in the prison, and that the applicant ’ s health and life were not under threat.

B. Relevant domestic law

45. Pursuant to section 638(1) of the Law on Criminal Procedure ( Kriminālprocesa likums ), if deprivation of liberty has been imposed on a convicted person who has fallen ill with a serious condition that hinders the execution of a sentence, a court may suspend it until he or she recovers.

46. Regulation of the Cabinet of Ministers no. 77 of 19 February 2002 on compulsory requirements regarding medical establishments and their units ( Noteikumi par obligātajām prasībām ārstniecības iestādēm un to struktūrvienībām ) include s general and specific requirements that hospitals and other medical facilities have to meet concerning, inter alia , premises, medical equipment, and the training and qualifications of medical personnel.

C. Relevant parts of the CPT reports in relation to Iļģuciema Prison

47 . The report of 22 November 2001 to the Latvian Government on the visit to Latvia carried out by the European Committee for the Prevention of Torture and Inhuman or Degrading Treatment (“the CPT”) from 24 January to 3 February 1999 provides the following:

“4. Iļģuciema Prison

...

122. The material conditions of sentenced prisoners, who were located in Blocks 1 and 2, could be considered as globally acceptable. The prisoners were accommodated in well-equipped dormitories measuring from 24 to 40 m², holding from 4 to 12 persons each. Access to natural light, artificial lighting, ventilation and heating were adequate. Moreover, as a rule, the dormitories were in a satisfactory state of repair and cleanliness. Prisoners had easy access to outside toilets and showers, and had at their disposal a small kitchenette where they could prepare their own meals. Although of a relatively outdated design and presenting some signs of wear-and-tear, the detention units gave a pleasant - even homely - impression, with many plants and colourful decorations.

123. The regime of activities varied slightly according to the category to which the prisoners concerned belonged (based on the length of the sentence). Differences consisted essentially in the degree of freedom of movement and access to privileges, such as extended visiting time. However, all prisoners benefited from a wide range of activities - sport in the well-equipped gym, education (tailors vocational school programme, Latvian and English courses, and a computer class), games, TV room, library”.

48 . The report of 15 December 2009 to the Latvian Government on the visit to Latvia carried out by the European Committee for the Prevention of Torture and Inhuman or Degrading Treatment (“the CPT”) from 27 November to 7 December 2007 notes:

“73. At the outset, the CPT welcomes the fact that the old Prison hospital on the premises of Rīga Central Prison has been withdrawn from service, following the opening of a new Prison hospital at Olaine on 1 August 2007. Further, it wishes to place on record the good quality of the health-care services provided to female prisoners at Iļģuciema Prison (including to mothers and their children)”.

COMPLAINTS

49. The applicant complained that her detention between 30 September and 11 November 2004 was contrary to the requirements of Articles 3 and 5 § 1 (a) of the Convention.

50. The applicant complained that her imprisonment, having regard to her state of health and the current situation in Latvian prisons as regards medical assistance, was contrary to the requirements of Article 3 of the Convention. She expressed concern that her state of health would deteriorate, as was the case after her detention between 30 September and 11 November 2004 in Iļģuciema Prison.

She further complained that as a public bailiff she was not separated from other prisoners in Iļģuciema Prison.

51. The applicant complained under Article 6 § 1 of the Convention that she was deprived of a fair trial.

52. The applicant complained under Article 6 § 2 of the Convention that several State officials, including those who were involved in the adjudication of her case, made public statements concerning the criminal proceedings before the court hearing. She also complained that a member of parliament and the Head of the Clemency Board of the Chancery of the President of Latvia had interfered with the work of the public prosecutors and the pre-trial investigation in the framework of the criminal proceedings against her.

THE LAW

A. Complaints under Article 3 of the Convention

53. The applicant ’ s complaint about the conditions and the quality of medical treatment during her detention and imprisonment in Iļģuciema Prison shall be examined under Article 3 which provides:

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

1. The period of detention from 1 October 2004 until 11 November 2004

54. In her observations the applicant expressed concern that the Government had not commented upon her complaint concerning the poor conditions and insufficient quality of medical treatment during her detention in 2004. The applicant considered that thereby the Government was leading the Court away from the main point of her complaint under Article 3.

55. The Government argued that they had not been asked to comment on this issue, and that in any case this part of the complaint would be found inadmissible under Article 35 §§ 1 and 4 as submitted out of time.

56. The Court has already concluded that in Latvia at the material time there were no effective domestic remedies in relation to complaints about conditions of detention (see KadiÄ·is v. Latvia (no. 2) , no. 62393/00, §§ 60 ‑ 63, 4 May 2006; Å…ikitenko v. Latvia ( dec .), no. 62609/00, 11 May 2006 ), and therefore the six-month period started to run from the act, decision or event which is itself alleged to be in violation of the Convention (see , among many others, Jordan v. t he United Kingdom ( dec .), no. 30280/96, 14 January 1998).

57. In the present case the six-month period started running on 11 November 2004, when the RÄ«ga Regional Court lifted the detention order, whereas the applicant first lodged a complaint in this connection more than six months later on 17 November 2006.

58. In the absence of any circumstances interrupting the running of the six-month period the Court concludes that this complaint has been submitted out of time and must be rejecte d in accordance with Article 35 §§ 1 and 4 of the Convention.

2. Imprisonment from January 2007 to January 2008

60. The applicant contested the Government ’ s observations by submitting additional information (see paragraphs 32-35, above). She also contested the CPT report of 2001, arguing that it fell short of reflecting the actual conditions in Iļģuciema Prison.

63. The Court notes at the outset that the parties are in disagreement as to the facts concerning the adequacy of the applicant ’ s medical treatment in Iļģuciema Prison, and the impact the conditions of her detention has had on her health. However, the Court considers that in the circumstances of the case the divergences do not have a crucial effect on its findings. The Court observes that even if the applicant ’ s health condition in general was poor, it does not derive from the medical records that it was of such a nature that would require constant medical supervision (see paragraph 41 above; contrast to the factual situation in, for instance, Paladi v. Moldova , no. 39806/05, § 81, 10 July 2007 and, more recently, Goginashvili v. Georgia , no. 47729/08 , § 76, 4 October 2011 . In both those cases, owing to their serious diagnoses the applicants were advised to follow particular medical recommendations and be supervised by a medical specialist). Even without relying on the evidence submitted by the Government, it derives from the information submitted essentially by the applicant and her husband that the former was under the permanent supervision of the medical staff of Iļģuciema Prison (see paragraph 31, above), received medication (see paragraphs 33-34, above) and had the possibility to arrange consultations with specialised practitioners of her own choice (see paragraph 32, above), which she had used during her leave from prison (see paragraph 42, above). The Court does not observe that any of the applicant ’ s complaints concerning her health have been neglected.

64. The fact that the applicant had to wait between a couple of weeks to several months to receive certain products or services which were not related to the treatment of asthma, such as physiotherapy, gel and food supplements is, in the Court ’ s opinion and given the particular circumstances of the case, acceptable in the light of the practical demands of imprisonment (see Kudła , cited above, § 93).

65. As to the overall adequacy of the medical unit of the Iļģuciema Prison the Court refers to the CPT conclusions, which cover the period of the applicant ’ s detention there (see paragraph 48 , above).

66. In the light of the above, the Court concludes that, taking into consideration the manner in which the State authorities dealt with the applicant ’ s health condition in Iļģuciema Prison, she was not subjected to treatment reaching the level of severity necessary for Article 3 of the Convention to be applied.

67. T his part of the application is therefore manifestly ill-founded and must be rejected pursuant to Article 35 §§ 3 and 4 of the Convention.

68. The applicant also complained that contrary to Article 6 § 2 of the Convention her right to be presumed innocent had been violated by statements made in 2004 by various state officials, including two public prosecutors involved in the criminal case against her and the judge of the lower court. The relevant part of that provision reads as follows:

“2. Everyone charged with a criminal offence shall be presumed innocent until proved guilty according to law”.

69 . The Government argued that the applicant failed to exhaust domestic remedies by addressing the allegedly incriminating statements of the judge in her appeals, and by bringing defamation proceedings against the public prosecutors concerned. In the alternative, they argued that the complaint in this connection was submitted outside the six-month time-limit.

70. The applicant did not comment the Government ’ s argument that she had failed to address this issue in her appeals. She argued that bringing defamation proceedings should not be considered obligatory for the purpose of exhausting domestic remedies and noted that she had only found out about the public statements later, in 2004.

71. The Court reiterates that under Article 35 § 1 it may deal with a matter only after all domestic remedies have been exhausted.

72. Concerning the statements of the judge, the materials of the case support the Government ’ s allegation that the applicant did not raise in her appeal or appeal on points of law the allegation that her right to be presumed innocent was infringed by the statements of the judge. Neither did she attempt to challenge the judge (contrary to the factual situation in Lavents v. Latvia , no. 58442/00, §§ 31-32, 28 November 2002 ). The Court observes that an appeal to a higher court with full jurisdiction and power to quash the lower court ’ s decision is in principle a remedy capable of putting right deficiencies in criminal proceedings, including alleged bias on the part of a judge (see Lebedev v. Russia (No.2) ( dec .), no. 13772/05, 27 May 2010). The Court subsequently concludes that this part of the complaint is inadmissible under Article 35 §§ 1 and 4 of the Convention for failure to exhaust domestic remedies.

C. Other complaints

74. The applicant alleged other violations of Articles 3, 5 § 1 a) and 6 § 1 of the Convention.

75. In the light of all the material in its possession, and in so far as the matters complained of are within its competence, the Court considers that the remainder of the application does not disclose any appearance of a violation of any of the above Articles of the Convention. It follows that these complaints are inadmissible and must be rejected pursuant to Article 35 §§ 1, 3 and 4 of the Convention.

For these reasons, the Court unanimously

Declares the application inadmissible.

Marialena Tsirli Josep Casadevall Deputy Registrar President