Communicated on 12 May 2016

SECOND SECTION

Application no. 8685/15 V.S . against Estonia lodged on 10 February 2015

STATEMENT OF FACTS

The applicant, Mr V.S. , is a stateless person, who was born in 1961. He is rep resented before the Court by Mr V. Lopman , a lawyer practising in Tallinn.

The circumstances of the case

The facts of the case, as submitted by the applicant and as they appear from the case file, may be summarised as follows.

On 11 November 2011 the applicant sustained an injury while in prison. In the prison medical records it was recorded that he had bruising and swelling over an area of 3 x 4 cm under his left eye, reddening of the skin on the right side of his face and neck, and swelling of both the left and right sides of his jaw over an area of 3 x 3 cm. An x-ray revealed that the applicant had suffered a complete transverse fracture of the left side of his mandible (jawbone) with the displacement of bone fragments.

On the same day, he was taken to the emergency department of Ida- Viru Central Hospital, a public hospital outside the prison, for further x-rays. His visit was recorded in patient medical file No . R370095. According to the medical file, the applicant was diagnosed with fractures of the skull and facial bones, and a compound skull fracture. According to the medical file, his jaw was bandaged, he was given medication and he was referred to a stomatologist . The medical file also indicates that he was recommended medical treatment in Tallinn (“ Soovitus Ravi Tallinnas ”, “Recommendation Treatment in Tallinn”), rinsing of the mouth and pain medication. Under “further treatment” the medical file indicates “ stomatological treatment”.

According to the applicant, the doctors in the emergency department had felt that he should be sent to either Tallinn or Tartu for surgery, since there was no stomatologist on duty at that time on a Friday night in the Ida- Viru Central Hospital. The prison officers escorting the applicant had refused to take him to Tallinn for surgery. The emergency department doctors had then wanted to place the applicant in the hospital ’ s inpatient care department to await surgery in hospital, but the prison officers had said that the prison had inpatient treatment facilities and that he would be placed there. The doctors had instructed the prison officers to bring the applicant to the hospital for surgery on 14 November 2011. After leaving the emergency department, the applicant was taken back to prison and, despite the seriousness of his diagnosis (fracture of the cranial and facial bones, compound skull fracture) and his visible injuries (bruising and swelling) he was placed in his cell instead of in the prison inpatient care facility.

On 11, 12, 14 and 15 November 2011 the prison medical personnel performed a medical examination on the applicant, which resulted only in the continued administration of pain relief medication. Notes in the medical files from 14 November 2011 indicate that the applicant had complained that he could not sleep because of pain in his head and jaw. The notes also indicate that the applicant ’ s entire face was swollen, he was unable to open his mouth, there was an unpleasant smell coming from his mouth and it was difficult to understand his speech.

According to the applicant, on 14 November 2011 he had asked the prison medical personnel why he had not been taken to hospital, but had not been given a clear answer.

On 18 November 2011 the applicant was taken to see a stomatologist . According to the applicant, he had been in acute pain the entire time, was on the brink of fainting and was unable to eat. Because seven days had passed since the injury, his jaw had begun to heal incorrectly and it had to be re-broken. This caused unnecessary pain which could have been prevented, had the prison officials provided him with prompt medical treatment on 11 November 2011 – as the emergency department doctors had considered right – or on 14 November 2011, as the emergency department doctors had instructed after the prison officers had refused to take the applicant to Tallinn for an operation.

The applicant received further treatment from a stomatologist on 25 November 2011, 2 December 2011, 9 December 2011 and 27 December 2011.

On 10 June 2012 the applicant submitted a complaint to the Tartu Administrative Court in which he claimed 100,000 EUR in compensation for non-pecuniary damage to his health and his dignity because he had not been provided with prompt medical treatment and had been placed in his cell while he was not well. He had sustained an injury while in prison and, without having been provided with the appropriate treatment, had been placed in his cell instead of in an inpatient care facility. He claimed that the prison authorities had failed to provide him with any treatment for seven days, had left him without food on the brink of fainting and only thereafter had sent him to a public hospital where his jawbone, which had already begun to heal, had had to be re-broken. The prison officials had caused damage to his health in the form of his jawbone healing incorrectly, due to which his teeth no longer aligned, his diction was affected, his motor coordination was impaired and inadequate nutrition had aggravated his state of health. The applicant claimed that he had suffered physical pain but also depression, anxiety, trouble sleeping and distress.

On 14 March 2013 a hearing was held in administrative case No. 3 ‑ 12 ‑ 1219. No representative from Viru Prison was present at the hearing although they had been summoned. Only the applicant was heard at the hearing. The applicant was not represented by a lawyer at the hearing or at any point during the domestic proceedings. No one other than the judge questioned the applicant and no witnesses were heard.

At the hearing, the applicant reiterated that the doctors in the emergency department of Ida- Viru Central Hospital had said that he needed to be treated in Tallinn or Tartu, but that the prison officers had refused to take him there. The on-call doctor in the emergency department had said that the applicant should then be admitted to hospital to await surgery on 14 November, but the prison officers had said that he would be returned to prison and placed in the inpatient facility there. The doctor had instructed the prison officers to bring the patient back for surgery on 14 November. Upon return to the prison, the prison officers had not placed him in inpatient care, but had placed him in his cell. The applicant stated that he had only been given pain relief medication, all he could do was lie in bed, and the pain had been so severe that he could not eat or sleep. He had not eaten or drunk anything. When he had gone back to the hospital, the doctor had wondered why he had come back so late. The applicant further stated that he still could not eat properly, as four teeth had fallen out and his jawbone was deformed. According to the applicant, the prison officers had forgotten that he needed to be taken for outpatient treatment. He claimed that if he had been taken to surgery immediately, his jaw would now be fine and he would have suffered less; the prison had violated his rights by failing to provide him with prompt outpatient care and by placing him in his cell when he should have been placed in inpatient care, which caused damage to his health and his dignity.

On 28 March 2014, the administrative court rejected the applicant ’ s complaint and refused to award any damages in compensation for non-pecuniary damage to his health and his dignity. The first instance court held that the applicant had been provided with medical treatment and that there was no proof that the medical staff had instructed anyone to take the applicant to Tallinn or to bring him to the hospital for further treatment on 14 November 2011 or that any decision had been made that the prison officials had ignored. There was also no proof that the prison officials had been obliged to place the applicant in the inpatient treatment facility instead of his cell. According to the written explanation provided by the Acting Head of the Medical Department of Viru Prison, the appointment on 18 November 2011 with the dental surgeon had been planned. The emergency department staff had not deemed it necessary to send the applicant to a stomatologist on an emergency basis, and the applicant had therefore been given an appointment based on the general waiting list. According to the first instance court, it was common knowledge that there were waiting lists to see specialists and that as a rule it was not possible to obtain an appointment with a specialist immediately. The first instance court also relied on a medical certificate ( õiend ) written on 4 April 2012 by a member of the nursing staff at Viru Prison which indicated that the applicant had received treatment for his jaw until 27 December 2011 and that being in a prison cell with a broken jawbone had not damaged the applicant ’ s health. The first instance court further noted that it was clear that a person who sustained fractures to his skull and facial bones would suffer even if he was provided with immediate medical treatment. The applicant could not therefore blame the prison officials that he had had to suffer pain and problems eating and drinking after suffering such a traumatic injury.

On 14 April 2013 the applicant filed an appeal against the judgment of the first instance court. He noted that the prison and the administrative court had avoided the real issue and had focused on the fact that the applicant had been given pain relief medication and had received outpatient treatment on 18 November 2011. They had, however, failed to analyse why the prison officers who had escorted the applicant to the emergency department had refused to take the applicant to Tallinn for surgery, why he had been taken to the hospital for outpatient treatment only on 18 November 2011 when he was supposed to be taken there on 14 November 2011, and why the applicant had not been placed in inpatient care until his outpatient treatment, despite the fact that the prisoner escort team had promised to do so and this had been ordered by the doctors.

On 9 May 2014 the Tartu Court of Appeal denied the applicant ’ s appeal based on the same reasoning as the first instance court.

On 25 May 2014, the applicant filed an appeal with the Supreme Court.

On 11 September 2014, the Supreme Court denied the applicant leave to appeal.

COMPLAINT

The applicant complains under Article 3 of the Convention that by failing to provide him with the prompt medical treatment ordered by doctors and placing him in a cell instead of in inpatient care, the prison officials caused him additional and unnecessary pain and suffering and harm to his health, which amounted to inhuman and degrading treatment.

QUESTIONS TO THE PARTIES

1. Has the applicant been subjected to inhuman or degrading treatment attributable to the prison authorities due to not being provided timely medical treatment and not being placed in inpat ient care, in breach of Article 3 of the Convention? In particular, does an injury such as the one sustained by the applicant require immediate treatment?

The parties are asked to express their position regarding why the courts did not hear the doctors and other medical personnel from the emergency department of Ida- Viru Hospital or the stomatologist who treated the applicant on 18 November 2011 as witnesses.

The Government are invited to provide all relevant information, including a copy of the medical certificate ( õiend ) issued by the prison nurse on 4 April 2012.