THIRD SECTION

DECISION

Application no. 45022/16 Fotaq ZAHARIA against Albania

The European Court of Human Rights (Third Section), sitting on 9 November 2021 as a Committee composed of:

María Elósegui, President, Darian Pavli, Frédéric Krenc ,

and Olga Chernishova, Deputy Section Registrar,

Having regard to the above application lodged on 30 July 2016,

Having regard to the declaration submitted by the respondent Government on 12 May 2021 requesting the Court to strike the application out of the list of cases and the applicant’s reply to that declaration,

Having deliberated, decides as follows:

FACTS AND PROCEDURE

1. The applicant, Mr Fotaq Zaharia, is an Albanian national who was born in 1960 and is serving a prison sentence. He was represented before the Court by Ms E. Skendaj, a lawyer practising in Tirana and working for the Albanian Helsinki Committee.

2. The Albanian Government (“the Government”) were represented by their then Agents, Ms A. Hicka, Ms E. Muçaj and, subsequently, by Ms B. Lilo of the State Advocate’s Office.

3. The applicant was arrested in 2009. During the arrest, he received a gunshot wound to the left thigh resulting in a bone fracture and causing a permanent disability. He underwent surgery to have the broken bone fixed with a plate and screws ( me pllakë dhe vida ). The criminal proceedings instituted against the applicant led to his conviction and the imposition of a long prison sentence, which are not the subject matter of this application. In 2013 he was transferred to serve his sentence in Kruja high security prison.

4. In spite of the initial medical intervention, the applicant’s health deteriorated as a result of, amongst other things, poor healing of the fracture coupled with a bone infection, not least because he had fallen, damaging the plate and screws and causing chronic blood clots, damage to the sciatic and femoral nerves, reduction of the coxofemoral articulation and trophic changes in the appearance of his foot. A 2011 medical experts’ report recommended that the applicant undergo further surgery to have the plate repaired, the performance of which necessitated securing six specific pieces of medical equipment. By 2014, the authorities had secured only two of the six pieces, the remainder not being available either at publicly or privately ‑ run hospitals or from pharmaceutical distributors in the country.

5. On 10 March 2015 the Kruja District Court, having regard to the deterioration of the applicant’s health and having obtained the opinion of two medical experts, found that the applicant had been subjected to inhuman and degrading treatment in breach of Article 3 of the Convention. The conditions of detention had adversely affected and aggravated his health. The court urged the authorities to put an end to that treatment and take the necessary measures to ensure a medical intervention at the University Hospital Trauma Centre in Tirana.

6. On 25 August 2016 the Court decided to indicate to the Government, under Rule 39 of the Rules of Court, that the applicant should immediately be offered the necessary medical intervention in accordance with the Kruja District Court’s decision.

7. On 30 December 2016 the Constitutional Court held that there had been a breach of the applicant’s right of access to court on account of the non-enforcement of the Kruja District Court’s decision. The Constitutional Court noted, however, that in 2015 and 2016 specialist doctors had informed the applicant that, owing to the complicated nature of the surgery and the necessity to have a wide range of medical equipment in order to perform it, some of his health problems might still persist after the intervention, and had consequently presented him with various alternatives. The applicant had declined to undergo a medical intervention unless the specialist doctors gave him absolute assurances that it would be successful and secured for him all of the medical equipment described in the 2011 expert report.

8. The Government were given notice of the application under Articles 3, 6, 13 and 14 of the Convention.

THE LAW

9. The applicant alleged under Article 3, amongst other Articles, that the authorities had failed to provide him with adequate medical treatment. He also complained about a breach of Article 6 of the Convention on account of the authorities’ failure to enforce the Kruja District Court’s decision.

10. After the failure of attempts to reach a friendly settlement, on 12 May 2021 the Court received a unilateral declaration from the Government which read as follows:

“The Government, through this unilateral declaration, express their regret that the applicant has been subjected to inhuman and degrading treatment, in breach of Article 3 of the Convention, as held by the Kruja District Court’s decision (...) and further upheld by the Constitutional Court’s decision .... In this connection, the Kruja District Court decision directed the authorities to provide the applicant with appropriate medical assistance and to put an end to this inhuman and degrading treatment arising from the lack thereof.

The Government, having carefully examined the circumstances of the applicant’s case, undertake to implement the Kruja District Court’s decision ... by taking the actions described below:

The authorities, owing to the long passage of time since a recommendation was made in a medical experts’ [report] given [i]n ... 2011 to perform complex surgical intervention(s), undertake to have the applicant examined by a team of specialist doctors, within three months from the date of notification of the Court’s decision in this case, in order to (1) assess his current state of health, and (2) recommend, to the best of their knowledge, the surgical interventions which may improve his health conditions. In accordance with domestic law and procedures, the applicant will be offered the possibility to appoint a doctor of his own choosing to become a member of the [specialist] doctors’ team.

The authorities undertake to inform, without delay, the applicant of any recommendations and conclusions which will be made by the team of specialist doctors and to respond to any of his questions about the proposed course of action in order to enable him to make a well-informed decision about the most appropriate intervention(s).

Subject to securing the procurement of any medication and/or medical equipment as well as the applicant’s written consent to any surgical intervention, the authorities undertake to implement, within three months from the occurrence of all of the above events, the recommendations which will be made by the team of specialist doctors, including, but not limited to, the performance of any surgical intervention(s) at the Tirana [University] Hospital [Trauma Centre] or another equivalent State-run civilian hospital on the same terms as such medical interventions are made available to the general public and are covered by the Albanian public healthcare system. In this connection, the Government notes that 36 surgical interventions were performed at the [University] Hospital [Trauma Centre]between 2015 and 2020, with the same diagnosis as the applicant’s.

The authorities undertake to provide the applicant with any post-operative therapies in accordance with any indications which may be made by the specialist doctors on the same terms as such post-operative therapies are made available to the general public and are covered by the Albanian public healthcare system.

The authorities undertake to ensure the applicant’s and his legal representative’s access to the medical file in accordance with domestic law and procedures.

The Government declare that they are prepared to pay 13,000 euros (thirteen thousand euros) to cover any and all pecuniary and non-pecuniary damage, as well as 2,000 euros (two thousand euros) to cover all costs and expenses, plus any tax that may be chargeable to the applicant.

The above-mentioned sums will be converted into the local currency at the rate applicable on the date of payment and will be free of any taxes that may be applicable. They will be payable within three months from the date of notification of the decision taken by the Court to strike the case out of its list of cases. In the event of failure to pay these sums within the said three month period, the Government undertake to pay simple interest on them, from expiry of that period until settlement, at a rate equal to the marginal lending rate of the European Central Bank during the default period plus three percentage points.”

11. By a letter of 14 June 2021 the applicant maintained that the 2011 medical experts’ report had recommended the performance of a medical intervention upon securing six pieces of medical equipment. The authorities’ failure to secure the entire set of medical equipment, without providing any information in that regard, was found to be in breach of his rights by the Kruja District Court, and further upheld by the Constitutional Court. The undertakings made in the unilateral declaration gave rise to strong concerns on his part that he would be placed in less favourable or unfavourable conditions as regards his state of health, since doctors had previously recommended that he undergo surgery. The authorities had failed to discharge their obligation to provide the applicant with the medical intervention, including any therapeutic treatment, for the last ten years. Lastly, he expressed his wish to undergo surgery if the authorities secured all of the medical equipment indicated in the 2011 medical experts’ report and he had a prior consultation with the same doctors who had examined him in 2011.

12. The Court reiterates that Article 37 of the Convention provides that it may at any stage of the proceedings decide to strike an application out of its list of cases where the circumstances lead to one of the conclusions specified under (a), (b) or (c) of paragraph 1 of that Article. Article 37 § 1 (c) enables the Court in particular to strike a case out of its list if “for any other reason established by the Court, it is no longer justified to continue the examination of the application”.

13. The Court also reiterates that in certain circumstances, it may strike out an application under Article 37 § 1 (c) on the basis of a unilateral declaration by a respondent Government even if the applicant wishes the examination of the case to be continued. To this end, the Court will examine the declaration in the light of the principles emerging from its case-law, in particular the Tahsin Acar judgment ( Tahsin Acar v. Turkey (preliminary objections) [GC], no. 26307/95, §§ 75-77, ECHR 2003-VI; WAZA Sp. z o.o. v. Poland (dec.), no. 11602/02, 26 June 2007; and Sulwińska v. Poland (dec.), no. 28953/03, 18 September 2007).

14. Turning to the present case, the Court notes that the subject matter of the application concerns the respondent State’s obligation to provide appropriate medical treatment to the applicant and to comply with a final domestic decision which had recognised the absence of such medical treatment and ordered the performance of a medical intervention. In this connection, the Court has examined prior cases concerning inadequate medical treatment provided to prisoners or detained persons and poor conditions of detention (see for example KudÅ‚a v. Poland [GC], no. 30210/96, § 94, ECHR 2000 ‑ XI; Dybeku v. Albania , no. 41153/06, § 38, 18 December 2007; Grori v. Albania , no. 25336/04, § 127, 7 July 2009; Cara ‑ Damiani v. Italy , no. 2447/05, § 66, 7 February 2012; and Blokhin v. Russia [GC], no. 47152/06, § 136, 23 March 2016).

15. The Court considers that the unilateral declaration contains an express acknowledgment by the Government that the applicant was subjected to inhuman and degrading treatment in breach of Article 3, not least because the domestic courts had made such an explicit finding and ordered a medical intervention for the applicant at the Tirana University Hospital Trauma Centre.

16. The Court also notes the nature and extent of undertakings made by the Government and welcomes the setting of time frames for attaining those undertakings. In the particular circumstances of the present case, the Court finds it justified that the applicant benefits from a fresh medical examination before undergoing surgery - which, according to the specialist doctors’ view as stated in the Constitutional Court’s decision, would be complicated - in order to assess his current state of health, not least because ten years have elapsed since the medical examination carried out in 2011.

17. It is not for the Court to speculate on the quality and outcome of a future medical examination. Therefore, the Court finds the applicant’s fears and doubts about the outcome of the medical examination unfounded. The Court considers that, having regard to the unilateral declaration, the aim of this undertaking is to ensure compliance with the Kruja District Court’s decision, in respect of which the Constitutional Court found that the applicant’s right of access to court, as also guaranteed by Article 6 of the Convention, had been breached. In this connection, the Court further considers that, owing to the complicated nature of the surgery and the range of variables involved, it is not unreasonable that the authorities are not in a position to provide absolute certainty that the medical intervention will be fully successful. In any event, the Court is satisfied that the authorities have proposed an amount of compensation which is consistent with the amounts awarded in similar cases (see for example Grori, cited above; Strazimiri v. Albania , no. 34602/16, 21 January 2020) for all damage caused to the applicant. The Government have committed themselves to paying that sum within three months from the Court’s decision, with default interest due in case of late payment.

18. The Court is also satisfied that, in spite of the applicant’s serving a prison sentence, all treatment and interventions, including any post ‑ operative therapy, will be provided on an equal footing to those made available to the general public and covered by the public healthcare system.

19. The Court deems it important to stress that the unilateral declaration procedure is an exceptional one. As such, when it comes to breaches of the most fundamental rights contained in the Convention, it is not intended to circumvent the applicant’s opposition to a friendly settlement or to allow the Government to escape their responsibility for such breaches (see Taşdemir and Others v. Turkey (dec.), no. 52538/09, § 21, 18 September 2019). In the present application, the Court has examined the circumstances of the case and the content of the unilateral declaration in the light of its case-law. It therefore considers that it is no longer justified to continue the examination of the application (Article 37 § 1 (c)).

20. Moreover, in the light of all of the above considerations, and in particular given prior similar case-law on the subject matter, the Court is satisfied that respect for human rights as defined in the Convention and the Protocols thereto does not require it to continue the examination of the application (Article 37 § 1 in fine ).

21. The Court further notes that the applicant complained under Articles 13 and 14 of the Convention, which were not explicitly addressed by the Government in their unilateral declaration. However, the Court considers that those complaints do not merit a separate examination as they are implicitly absorbed by the undertakings contained in the Government’s unilateral declaration.

22. Lastly, the Court emphasises that, should the Government fail to comply with the terms of their unilateral declaration, the application could be restored to the list in accordance with Article 37 § 2 of the Convention ( Josipović v. Serbia (dec.), no. 18369/07, 4 March 2008).

23. In view of the above, it is appropriate to strike the case out of the list.

For these reasons, the Court, unanimously,

Takes note of the terms of the respondent Government’s declaration under Articles 3 and 6 of the Convention and of the modalities for ensuring compliance with the undertakings referred to therein;

Decides to strike the application out of its list of cases in accordance with Article 37 § 1 (c) of the Convention.

Done in English and notified in writing on 9 December 2021.

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Olga Chernishova María Elósegui Deputy Registrar President