Communicated on 6 July 2015

FIRST SECTION

Application no. 31268/14 Neat EMINOV against the former Yugoslav Republic of Macedonia lodged on 14 April 2014

STATEMENT OF FACTS

The applicant, Mr Neat Eminov , is a Macedonian national of Roma origin , who was born in 1959 and lives in Kavadarci . He is the father of R.A. who died on 1 August 2010, at the age of nineteen, under the circumstances described below. The applicant is represented before the Court by European Roma Rights Center from Budapest, Hungary .

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

On 29 July 2010 R.A. was arrested and held overnight in a police station in view of enforcing a final judgment by which he had been sentenced to three months ’ imprisonment. On 30 July 2010 (Friday) R.A. was admitted to Gevgelija p rison ( “ the prison ” ). Since he was a drug user, he was firstly examined at the Centre for Prevention and Treatment of Drug Abuse at Gevgelija h ospital (“CPTSA”), where he was administered a daily dose of methadone. According to a certificate issued on 3 August 2010 by Dr. S.C. from CPTSA, R.A. had been a drug addict; he had last used methadone on 28 July 2010; he displayed withdrawal symptoms ; had no thorax and heart deficiency and had a “regular exterior appearance” ( уреден надворешен изглед ) . The certificate further indicated that methadone therapy for the following days (weekend and a public holiday) had been handed over to the prison guards that had accompanied R.A. Both guards confirmed (in the compensation proceedings , see below ) that the prescribed doses of methadone, as was the case with other medical supplies, were kept in a locked cabinet in a closed room to which only prison staff had access.

R.A. did not have any other medical examination upon admission or during his stay in the prison. The prison did not employ a full-time doctor or any other medical staff, having instead concluded a service contract ( договор за дело ) with Dr S.J., which required him to take all necessary measures concerning prisoners ’ health and to be available at all times. The requests of the prison ’ s director for a full-time medical professional were to no avail.

R.A. was accommodated alone in a six-bed room, in the closed ward of the prison (due to his failure to report himself to serve the sentence) . On 31 July 2010 R. A. was given the recommended methadone dose by the day-shift officers. As stated by the prison guards (in the compensation proceedings), during that day R. A. had not show n any signs that his health was deteriorating.

On 1 August 2010 at 7 am. a prison guard M.J. found R.A. sleeping and breathing with difficulty. Ambulance was called and, upon their arrival, medical staff instructed that R.A. be transferred to Gevgelija h ospital. When admitted in Gevgelija h ospital, R.A. was in a comatose state, breathing irregularly. Two lacerated bruises were found on his forehead. As his condition worsened, R.A. was intubated and sent to Skopje hospital. R.A. was admitted in Skopje hospital, where he was pronounced dead at 12 .30 p . m. The cause of death reported by the Skopje hospital was cardiac arrest.

On 2 August 2010 post mortem examination (requested by a public prosecutor and ordered by an investigating judge) w as carried out on R.A. ’ s corpse, which confirmed that lung inflammation caused the death. The report revealed a high level of methadone and barbiturates in R.A. ’ s urine- concentration of methadone 1435 ,37ng /ml (compared to a reference concentration of 250ng/ml) and concentration of barbiturates 504,93ng/ml (compared to a reference concentration of 200ng/ml). According to the report, the lung inflammation, aggravated by high levels of methadone and barbiturates that had depressed R.A ’ s breathing, had led to organ failure. The report further noted a lacerated wound on R.A. ’ s forehead (2 x 0,2cm) and a reddish bruise above (1 ,3 x 0,2cm).

A. Criminal proceedings regarding R.A. ’ s death

1. Investigation initiated by the authorities

On 14 December 2010 the post mortem report was communicated to the public prosecutor, who informed the applicant (with a letter of 22 December 2010) that there were no grounds to believe that a crime, subject to State prosecution, had been committed.

On an unspecified date, the public prosecutor requested and the Veles Court of First Instance ordered the Forensic Institute to provide an expert opinion as to whether R.A. had been given adequate medical care before his death. In an opinion dated 31 January 2012, the Forensic Institute held that R.A. ’ s medical treatment in Gevgelija hospital had been adequate. The report further noted that R.A. ’ s death had been caused by lung inflammation and that the methadone and barbiturates found in his body had contributed to his death. As alleged by the applicant, this report had been included in the case file, but it had not been communicated to him. No further information was provided regarding these proceedings.

2. Criminal proceedings instituted by the applicant

On 5 July 2013 the applicant lodged a criminal complaint for professional misconduct ( несовесно работење во службата ) alleging that the prison and its director had not taken necessary measures to protect R.A ’ s right to life. In this connection he complained that R.A. had been admitted to prison in good health and that he had died in prison. The high level of methadone and barbiturates in R.A. ’ s body remained unexplained notwithstanding that Dr. S.C. had given the prescribed dose of methadone to prison guards. He further complained of the fact that the prison had not employed full-time doctor who would monitor prisoners ’ health. Lastly, he referred to the Law on Execution of Sanctions according to which addicts were to be medically treated in the facility or, if necessary, instructed to be treated in adequate medical institution.

In reply to a request by the public prosecutor, on 31 July 2013 CPTSA clarified that prescribed dosage of methadone could not have resulted in the levels of methadone found in R.A. ’ s body during the autopsy.

On 10 September 2013 the public prosecutor rejected the applicant ’ s criminal complaint finding that no criminal liability could be attributed to the prison, a legal entity, in relation to the charges brought against it. As regards the prison ’ s director, the public prosecutor found that there was no suspicion that he had committed the imputed crime. In this connection it referred to the expert report of the Forensic Institute and held that R.A. neither had reported nor had he complained to any health difficulties . The lung inflammation could not have developed during his short stay in the prison. All person involved had undertaken all necessary measures, namely R.A. had been examined by a doctor when admitted to prison; adequate methadone therapy had been administered ; R.A. had been given adequate medical care as soon as his health condition deteriorated.

The public prosecutor further stated that:

“... it was not established where and when R.A. had obtained additional methadone; when and where that dosage had been administered to him and whether the level of methadone had been attained during the critical night having in mind that methadone could be withheld up to fifty-five hours. In any event, there is no indication of professional misconduct on the part of (the prison ’ s director) ...”

On 22 October 2013 the applicant filed a subsidiary indictment before the Gevgelija Court of First Instance. On 22 November 2013 the court rejected the subsidiary indictment as belated. The court held that the public prosecutor ’ s decision of 10 September 2013 had been sent, by registered mail, to the applicant on 17 April 2013. The applicant had been absent at the time of delivery and had not sought the decision from the post office. With a decision dated 16 June 2014 the Skopje Court of Appeal accepted the applicant ’ s appeal and quashed the trial court ’ s decision.

On 27 November 2014 the trial court dismissed the indictment finding that no criminal liability could be attributed to the prison, a legal entity, in relation to the imputed crime. On 25 December 2014 the applicant lodged an appeal against this judgment. The appeal proceedings are apparently underway.

3. Compensation proceedings instituted by the applicant

On 18 July 2013 the applicant brought a compensation claim against the prison seeking the equivalent to 4,900 euros for non-pecuniary damage sustained as a result of R.A. ’ s death. The applicant reiterated his grievances outlined in the criminal complaint (see above) and further specified that:

“The prison officials failed in their duty of care allowing excessive dosage of methadone and barbiturates to be administered to (R.A.), which affected his health and led to his death ...

Until today, (the prison) did not explain how was it possible that a prisoner obtain and consume excessive dose of methadone and barbiturates. There are two possible scenarios: the guards had wrongly administered the methadone therapy prescribed for R.A. or the latter was able to obtain from a third person larger quantity of methadone and barbiturates while in prison. In both cases, the defendant ’ s failure is evident [since] it was its responsibility to protect the psychophysical integrity of (R.A.), a failure that led to his death ...

The absence of adequate medical care, after (R.A.) was admitted to prison, as well as the absence of medical practitioner within the prison, led to symptoms of a severe lung inflammation having not been discovered on time ... Furthermore, the prison guard, a person without a medical background, was entrusted with a duty to administer the methadone therapy, which is contrary to professional standards and practices. ”

Lastly, the applicant submitted that he had been living in a single economic unit with his son before the death.

During the proceedings, the trial court heard oral evidence from several witnesses, including prison guards. The latter confirmed that R.S. had been in good health when admitted and during his stay in prison He had not complained of any health problems. D.A. and K.V. (prison guards) confirmed that R.A. had not been examined by a doctor at his admission in prison. Dr M.K., coordinator at CPTSA denied that any blood and urine examination had been carried out at CPTSA. Similarly, there had been no lung examination of prisoners given that the prison had a specialist. The prison director stated that, when R.A. had been admitted, the prison doctor had been unavailable.

On 27 January 2014 the trial court dismissed the applicant ’ s claim. It established that on 30 July 2010 R.A. had been examined at CPTSA , where he had received the daily dose of methadone. Methadone therapy for the following days had been handed over to prison guards. On 31 July 2010 R.A. had obtained another daily dose of methadone prescribed by CPTSA. When admitted and during his stay in prison, R.A. had not complained of or demonstrated any health problems. The remaining doses of methadone, which had been prescribed by CPTSA and handed over to prison guards, had been returned, after R.A.s death, to CPTSA . In such circumstances, the court held that no responsibility could be attributed to the defendant for R.A. ’ s death. Furthermore, the court dismissed the applicant ’ s claim since he had not proved that he had been living in a single economic unit with R.A.

On 29 October 2014 the Skopje Court of Appeal confirmed the established facts and the reasoning given by the first-instance court.

4. Criminal proceedings in relation to alleged ill-treatment of R.A.

On 5 July 2013 the applicant filed a criminal complaint against unknown persons on account of ill-treatment and torture punishable under the Criminal Code. The complaint concerned injuries on R.A, ’ s forehead, which according to the applicant, had been a result of excessive force used during R.A. ’ s arrest (see above). The applicant stated that there were eyewitnesses who could confirm the alleged crime.

With a decision of 20 June 2014 the public prosecutor rejected the applicant ’ s criminal complaint. It referred to the facts regarding R.A. ’ s admission to prison; the medical examination at CPTSA; the methadone therapy and results of the post mortem examination of R.A. ’ s corpse, including injuries on R.A. ’ s forehead. The prosecutor noted that the applicant neither specified any witness nor did he submit any evidence to support his allegation. The applicant challenged this decision before the higher public prosecutor ’ s office. These proceedings are still pending.

B. Relevant international material

1. Report to the Government of “the former Yugoslav Republic of Macedonia” on the visit to “the former Yugoslav Republic of Macedonia” carried out by the European Committee for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment (CPT), from 21 September to 1 October 2010, Strasbourg, 25 January 2012

The relevant parts of the Report read as follows:

“ 77. The Committee remains concerned that deaths in custody are not systematically the subject of an investigation, in order to establish the cause of death, identify possible criminal and/or disciplinary responsibility and ascertain whether there are lessons to be learned for the future as regards operating procedures.

...

The circumstances surrounding the death of the inmate at Gevgelija Prison, which occurred in August 2010, were more obscure. The nineteen-year-old man concerned was arrested and held overnight in Kavadarci Police Station and transferred to Gevgelija Prison on 30 July 2010. Two days later, on 1 August 2010, he was found unconscious in his cell at 7 a.m. and was immediately transferred to Gevgelija Hospital. At 8.50 a.m. he was transferred by ambulance to Skopje but was declared dead upon arrival at Skopje University Hospital. A number of outstanding issues remain to be answered concerning this death, such as: was the person provided with Naloxone (an antidote to opiate intoxication) at Gevgelija Hospital before being transferred to Skopje given that he was known to be a drug addict and on methadone maintenance; why was it necessary to transfer the patient to Skopje (a journey of three to four hours); why was the person not medically screened during the two days he was held in Gevgelija Prison; how did the person obtain the wound on his forehead. The CPT ’ s delegation stressed the importance of carrying out an investigation into this case when it met with the national authorities at the end of the visit.

The CPT recommends that the authorities institute a practice of carrying out thorough inquiries into every death in custody, which in each case should include an autopsy ...”

COMPLAINTS

The applicant complains under Article 2 of the Convention in that the respondent State was responsible for R.A. ’ s death since it failed 1) to diagnose and treat R.A. ’ s pneumonia and 2) to ensure he ingested only the prescribed dose of methadone. He also alleges that the investigation into R.A. ’ s death was ineffective. Lastly, he complains about a lack of an effective remedy, as required under Article 13, in relation to his complaints under Article 2 of the Convention.

QUESTIONS TO THE PARTIES

1. Did the respondent State discharge its positive obligation under Article 2 of the Convention to protect the right to life of the applicant ’ s son? In this connection did the respondent State undertake all reasonable measures to prevent R.A. ’ s death? The parties are invited to comment on the absence, as noted in the material from the domestic proceedings, of any medical examination of the applicant ’ s lungs, blood and urine before his admission to prison?

2 Having regard to the procedural protection of the right to life (see paragraph 104 of Salman v. Turkey [GC], no. 21986/93, ECHR 2000-VII), was the investigation in the present case by the domestic authorities in breach of Article 2 of the Convention?

3 . Did the applicant have at his disposal an effective domestic remedy for his complaints under Article 2 , as required by Article 13 of the Convention?