Information Note on the Court’s case-law 199

August-September 2016

Wenner v. Germany - 62303/13

Judgment 1.9.2016 [Section V]

Article 3

Positive obligations

Obligation on prison authorities to seek independent medical advice on the appropriate treatment for a drug-addicted prisoner: violation

Facts – The applicant prisoner is a long-term heroin addict. From 1991 to 2008 his addiction was treated with medically prescribed and supervised drug substitution therapy. In 2008 he was imprisoned and this treatment was stopped.

In his application to the European Court, he complained under Article 3 of the Convention about the refusal of the prison authorities to provide him with drug substitution treatment, which he claimed was the only adequate response to his medical condition. The applicant criticised the authorities’ failure to allow a doctor from outside the prison to examine the necessity of treating him with drug substitution medication, which had proved successful when offered to him over the course of a seventeen-year period prior to his imprisonment.

Law – Article 3: It was for the Government to provide credible and convincing evidence showing that the applican t had received comprehensive and adequate medical care in detention. A number of strong elements indicated that drug substitution treatment could be regarded as the requisite medical treatment for the applicant. He was a manifest and long-term opioid addic t. All his attempts to overcome his addiction had failed and it could no longer be expected with sufficient probability that he could be cured of his drug addiction. It was further uncontested that the applicant suffered from chronic pain linked to his lon g-term drug consumption. Prior to his detention he had been treated with medically prescribed and supervised drug substitution therapy for seventeen years. The Federal Medical Association’s Guidelines for the Substitution Treatment of Opiate Addicts clarif ied that substitution treatment was a scientifically tested therapy for manifest opiate addiction. Drug substitution therapy was, in principle, available outside and in prisons in Germany (as in the majority of member States of the Council of Europe), and was actually provided in practice in prisons in several Länder other than Bavaria where the applicant was detained.

The Court noted that there was a strong indication that drug substitution treatment could be regarded as the required medical treatment for the applicant: this was confirmed both by the doctors who had prescribed the applicant drug substitution therapy prior to his detention as well as by two external doctors, one of whom had examined the applicant in person. This meant that the domestic auth orities were under an obligation to examine with particular scrutiny whether the continuation of the abstinence-oriented therapy was to be considered the appropriate medical response.

However, there was no indication that the domestic authorities, with th e help of expert medical advice, had examined the necessity of drug substitution treatment with regard to the criteria set by the relevant domestic legislation and medical guidelines. Despite the applicant’s previous medical treatment with drug substitutio n therapy for seventeen years, no follow-up had been given to the opinions expressed by external doctors on the necessity to consider providing the applicant with that treatment again.

Conclusion : violation (unanimously). Facts – The applicant prisoner is a long-term heroin addict. From 1991 to 2008 his addiction was treated with medically prescribed and supervised drug substitution therapy. In 2008 he was imprisoned and this treatment was stopped.

In his application to the European Court, he complained unde r Article 3 of the Convention about the refusal of the prison authorities to provide him with drug substitution treatment, which he claimed was the only adequate response to his medical condition. The applicant criticised the authorities’ failure to allow a doctor from outside the prison to examine the necessity of treating him with drug substitution medication, which had proved successful when offered to him over the course of a seventeen-year period prior to his imprisonment.

Law – Article 3: It was for the Government to provide credible and convincing evidence showing that the applicant had received comprehensive and adequate medical care in detention. A number of strong elements indicated that drug substitution treatment could b e regarded as the requisite medical treatment for the applicant. He was a manifest and long-term opioid addict. All his attempts to overcome his addiction had failed and it could no longer be expected with sufficient probability that he could be cured of h is drug addiction. It was further uncontested that the applicant suffered from chronic pain linked to his long-term drug consumption. Prior to his detention he had been treated with medically prescribed and supervised drug substitution therapy for seventee n years. The Federal Medical Association’s Guidelines for the Substitution Treatment of Opiate Addicts clarified that substitution treatment was a scientifically tested therapy for manifest opiate addiction. Drug substitution therapy was, in principle, ava ilable both outside and inside prisons in Germany (as in the majority of member States of the Council of Europe), and was actually provided in practice in prisons in several Länder other than Bavaria where the applicant was detained.

The Court noted that t here was a strong indication that drug substitution treatment could be regarded as the required medical treatment for the applicant: this was confirmed both by the doctors who had prescribed the applicant drug substitution therapy prior to his detention as well as by two external doctors, one of whom had examined the applicant in person. This meant that the domestic authorities were under an obligation to examine with particular scrutiny whether the continuation of the abstinence-oriented therapy was to be considered the appropriate medical response.

However, there was no indication that the domestic authorities, with the help of expert medical advice, had examined the necessity of drug substitution treatment with regard to the criteria set by the relevant domestic legislation and medical guidelines. D espite the applicant’s previous medical treatment with drug substitution therapy for seventeen years, no follow-up had been given to the opinions expressed by external doctors on the necessity to consider providing the applicant with that treatment again.

Conclusion : violation (unanimously).

Article 41: Finding of a violation constituted in itself sufficient just satisfaction for any non-pecuniary damage; claim in respect of pecuniary damage dismissed.

(See the Research Report on Health-related issues in the case-law of the ECHR and the Factsheet on Prisoners’ health-related rights )

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

Click here for the Case-Law Information Notes