Communicated on 8 October 2015

SECOND SECTION

Application no. 21951/15 Josip GOLUBAR against Croatia lodged on 30 April 2015

STATEMENT OF FACTS

The applicant, Mr Josip Golubar , is a Croatian national, who was born in 1955 and is currently detained in Zagreb Prison.

A. The circumstances of the case

The facts of the case, as submitted by the applicant, may be summarised as follows.

On 26 February 2014 the applicant began to serve a three-year prison sentence. He was placed in Zagreb Prison Hospital (“ZPH”).

On 28 February 2014 he lodged a request with a Zagreb County Court judge responsible for the execution of sentences and the Head Prison Administration to have his prison sentence suspended on account of his state of health. He claimed that from 5 to 12 February 2014 he had been hospitalised in Dubrava Hospital in Zagreb because he had suffered a stroke. He also had two brain arteriovenous malformations, one of which had been removed in February 2013 by means of gamma knife radiosurgery, and the three-year high-risk recovery period had not yet ended. He referred to his medical documents, which had established basal ganglia in the ventricular system with a risk of haemorrhage, increased by the stress of the prison conditions. He also claimed that in combination with the epileptic fits he suffered, his health issues could be life-threatening.

A medical report by ZPH drawn up on 6 March 2014 confirmed the claims put forward by the applicant in his request and concluded:

“[The prisoner] presents a permanent high risk to himself and the institution in which he is placed. The expert opinion is that two or three years are needed for his brain condition to stabilise after the gamma knife surgery. We consider his request for a stay of his prison term medically justified.”

On 18 April 2014 a Zagreb County Court judge responsible for the execution of sentences dismissed the applicant ’ s request. This decision was based entirely on an opinion given by Dr B., an expert in general medicine and cardiology. Dr B. concluded that the applicant was not suffering from any acute illness, and that during his time at ZPH his chronic illness had not worsened. Dr B. also stated that in the event of a sudden deterioration in the applicant ’ s state of health, he could easily be transferred to an appropriate medical institution. Lastly, he asserted that the applicant ’ s current medical problems could be appropriately treated at ZPH.

On 25 April 2014 the applicant lodged an appeal, in which he argued that since incarceration his medical condition had been deteriorating constantly, that the ZPH doctors had themselves recommended that his prison sentence be suspended on medical grounds, and that Dr B. could not give a proper opinion on his health since he was not an expert in neurology.

On 8 July 2014 a three-judge panel of Zagreb County Court quashed the first-instance decision and instructed the first-instance court to commission a neurologist to give an opinion.

On 21 August 2014 the same Zagreb County Court judge responsible for the execution of sentences dismissed the applicant ’ s request. It was based mainly on the opinion given by Dr M., an expert in neurology. She concluded that the applicant had not being suffering from any acute illness, that his chronic illness had improved, that he had been receiving good medical care at ZPH, and that it had appropriate staff to meet the needs of the applicant as regards the medical care his condition required.

On 16 May 2014 the applicant lodged an appeal, in which he contested the qualifications of Dr M. and the validity of her opinion. He argued that she had not answered the question whether ZPH had adequate staff and could otherwise properly treat his medical condition. He further argued that the judge responsible for the execution of sentences had not addressed the contradictions between the findings of the ZPH doctors expressed in their opinion of 6 March 2014 and the reports of the medical experts commissioned by Zagreb County Court.

He also asserted that his medical condition could only be properly treated in a specialist medical institution.

Following a suggestion by ZPH that there was no need for the applicant ’ s further hospitalisation, on 29 September 2014 the Head Prison Administration ordered his transfer to Zagreb Prison.

On 2 October 2014 he lodged an appeal, arguing that neither the staff nor equipment at ZPH were satisfactorily suited to carry out proper diagnostic examinations to accurately assess his medical condition. He asked for an urgent transfer to a suitable medical institution where a proper diagnostic examination could be carried out.

The applicant ’ s appeal was dismissed on 14 October 2014 by the same Prison Administration.

On 31 October 2014 a three-judge panel of the Zagreb County Court dismissed the applicant ’ s appeal against the decision of 21 August 2014, endorsing its reasoning.

On 19 November 2014, at his own request, the applicant was transferred to the Sisters of Mercy Hospital in Zagreb so that neurological tests could be carried out. During his transfer in a police van he suffered an epileptic fit and lost consciousness. This was discovered only on arrival at the front entrance of the hospital when officers opened the back door of the van and found him lying on the floor. He spent ten hours at the hospital and was then returned to Zagreb Prison.

On an unspecified date the applicant lodged a constitutional complaint against the decisions concerning his request for the suspension of his prison sentence and the decision concerning his transfer to Zagreb Prison. In addition to the complaints put forward in his previous requests and appeals, the applicant also complained that during his eight months at ZPH he had not had proper access to sanitary facilities and had been obliged to ask the guards to let him out of the room each time he needed the toilet, a request which they sometimes had not answered in time. Since there had been no lift at ZPH, to have access to fresh air he had had to climb the stairs to his cell on the second floor, which had been a risk to his health. He further reiterated that ZPH had had no neurology department or even a neurologist, so his condition could not have been properly treated there. Even though specialists from the two civil hospitals where he had been treated prior to his imprisonment had recommended that check-ups be carried out every month, he had not been given them.

He further complained about the conditions in Zagreb Prison. He claimed that he had been placed in a cell with seven other inmates, and that a lack of fresh air in the cell had worsened his condition. There had been a squat toilet in the cell, which had not been completely private and a foul smell had emanated from it. Inmates had had to eat in their cells. There had been no lift, which had prevented him from accessing fresh air.

On 21 December 2014 the applicant lodged another request for the suspension of his prison sentence on health grounds, reiterating his previous arguments.

On 5, 9, 15 and 17 January 2015 he was transferred to Rebro Hospital in Zagreb. A report drawn up there on 15 January indicates that there was no need for any urgent measures. It was also established that the applicant had had a high concentration of tramadol (a painkiller) and its metabolites, benzodiazepine (a class of psychoactive drug) and olanzapine (an atypical antipsychotic).

The applicant ’ s constitutional complaint was declared inadmissible by the Constitutional Court on 27 January 2015 on the grounds that the contested judgment had not concerned the merits of his civil rights or obligations or a criminal charge against him, and as such was not amenable to constitutional review.

On 18 March 2015 a Zagreb County Court judge responsible for the execution of sentences dismissed the applicant ’ s request of 21 December 2014. It relied on previous expert opinions as well as on a further opinion of Dr S., an expert in neuropsychiatry who confirmed that the applicant had not been suffering from any acute illness, that his medical condition had not worsened, and that ZPH had the appropriate capacity for his treatment in all respects. The County Court further relied on ZPH reports dated 20 and 28 January 2015 stating that the applicant had not been following doctors ’ orders, had not been taking measures aimed at his treatment and had been deliberately putting his health at risk.

On 27 March 2015 the applicant lodged an appeal, reiterating his arguments.

COMPLAINT

The applicant complains that the failure of the national authorities to secure his placement in an adequate institution capable of providing him with the care appropriate for his serious medical condition amounted to ill-treatment contrary to Article 3 of the Convention.

QUESTIONS TO THE PARTIES

1. Has the applicant been subjected to inhuman or degrading treatment or punishment, in breach of Article 3 of the Convention?

2. Have the competent State authorities complied with their positive obligations under Article 8 of the Convention to secure to the applicant the right to effective respect for his physical and psychological integrity during his incarceration since 26 February 2014? In particular, have the national courts assessed all relevant facts concerning the applicant ’ s request for the stay of his prison term on health grounds?