Information Note on the Court’s case-law 212

November 2017

Dorneanu v. Romania - 55089/13

Judgment 28.11.2017 [Section IV]

Article 3

Inhuman treatment

Conditions of detention of convicted prisoner with terminal cancer: violation

Facts – Having been the subject of criminal proceedings since 2002, the applicant was convicted in a final judgment in February 2013 and sentenced to three years and four months’ imprisonment.

Although he had been diagnosed with advanced prostate cancer in November 2012, he was admitted to prison in March 2013 to begin his sentence. He applied immediately and on several further occasions for the suspension of his sentence. In June 2013 the court granted his application for a three-month period, but in August 2013 the court of appeal held that the necessary medical treatment could be provided in prison. To receive his treatment, the applicant was repeatedly transferred between diffe rent hospitals and prisons, sometimes a very long distance apart. His chemotherapy was replaced by palliative care, and he died in hospital in December 2013.

Law – Article 3 ( substantive aspect )

(a) General conditions of detention : The conditions in whic h the applicant had been held had subjected him to hardship going beyond the unavoidable level of suffering inherent in detention. Although the duration of his detention with less than 3 sq. m of personal space had been brief, the ordinary cells (between 3 and 4 sq. m) had not been suitably equipped to accommodate his severe disability, as towards the end of his life he had become blind and deaf and suffered from bone pain.

(b) Repeated transfers : Although the majority of the transfers had been justified o n medical grounds, the fact remained that the institutions concerned were a long distance apart, and in some cases several hundred kilometres away. In view of the applicant’s deteriorating health, these repeated changes were likely to instil and exacerbate feelings of anxiety in him as to the suitability of the different detention facilities, the implementation of the medical protocol for his treatment and his continued contact with his family. The intensity of such hardship likewise exceeded the unavoidabl e level of suffering inherent in detention.

(c) Quality of care and assistance : At the time of his admission to prison, the applicant had already been suffering from a disease with a fatal short-term prognosis. Although he had been treated in accordance w ith doctors’ instructions, the domestic authorities did not at any time appear to have envisaged the possibility of providing the treatment in the same place – which would have spared the applicant a number of transfers – or at least limiting the number of transfers and their harmful effects on the patient’s well-being. Moreover, in the final stages of the disease, when there was no longer any hope of remission, the stress inherent in prison life could have repercussions on the prisoner’s life expectancy an d state of health.

A stage had been reached where the applicant had become so physically and psychologically weakened and diminished that he was no longer able to perform basic everyday tasks unaided and a fellow prisoner had been designated to assist him. There was no evidence that the prisoner who had agreed to help the applicant was qualified to assist a terminally ill person or that the applicant had received proper moral or social support or appropriate psychological counselling, even though he had bee n found to be suffering from depression.

(d) Continued imprisonment in inadequate conditions of detention : The applicant had been imprisoned despite being terminally ill and suffering the effects of heavy medication in difficult prison conditions. In such a context, any lack of diligence on the authorities’ part placed the person concerned in an even more vul nerable position, making it impossible for him to retain his dignity as his illness ran its inevitably fatal course.

As the applicant’s disease had progressed, it had become impossible for him to endure it in a prison environment. It had thus been the responsibility of the national authorities to take special measures on the basis of humanitarian considerations.

As to wh ether the applicant’s continued detention had been appropriate, the Court could not substitute its own view for that of the domestic courts, but it nevertheless noted that the court of appeal had not put forward any reasons linked to the threat that the ap plicant’s release might have posed in terms of protecting the community, with due regard for his condition. This had been the applicant’s first ever conviction and he had already served one-third of a relatively mild sentence; his behaviour during the tria l had been good; he had been granted the most favourable prison regime; and on account of his state of health, the risk of his reoffending could only have been minimal.

The authorities had not examined whether in practice the applicant was fit to remain in prison in the conditions complained of. The court of appeal had held that the treatment prescribed could be provided in detention but had not considered the conditions and practical arrangements for administering such heavy medication in the applicant’s s pecific situation, the conditions for his transfer to the different prisons and hospitals, the distances between these facilities, the number of hospitals to which he had been admitted to receive his treatment or the impact of this combination of factors o n his already highly vulnerable state. In view of the exceptional nature of the circumstances of the case, these factors should have been examined, even on humanitarian grounds alone, in order to assess whether the applicant’s state of health was compatibl e with the conditions of his detention.

No arguments had been put forward to the effect that it had been impossible for the national authorities to address these exceptional circumstances with due regard for the pressing humanitarian considerations they e ntailed. On the contrary, the procedures followed had prioritised formalities, thus preventing the dying applicant from spending his final days in dignity. In addition, the length of the proceedings for having the sentence suspended on health grounds had b een excessive for a terminally ill patient, and the replies by the prison authorities to the applicant’s requests for assistance in securing his release had been characterised by a lack of consideration for his situation.

In conclusion, the conditions of d etention which the applicant had had to endure while terminally ill had amounted to inhuman treatment.

Conclusion : violation (unanimously).

Article 41: EUR 9,000 to the applicant’s son in respect of non-pecuniary damage; claim for pecuniary damage rejected .

(See also Gülay Çetin v. Turkey , 44084/10, 5 March 2013, Information Note 161 ; see also the Factsheet on Prisoners’ hea lth-related rights )

© Council of Europe/European Court of Human Rights This summary by the Registry does not bind the Court.

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