Communicated on 17 June 2014

FIFTH SECTION

Application no. 62303/13 Wolfgang Adam WENNER against Germany lodged on 30 September 2013

STATEMENT OF FACTS

The applicant, Mr Wolfgang Adam Wenner , is a German national, who was born in 1955 and is currently detained in Kaisheim Prison in Bavaria. He is represented before the Court by Mr F. Haas, a lawyer practising in Starnberg .

A. The circumstances of the case

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

1. The applicant ’ s situation

The applicant is currently serving a lengthy prison sentence for drug trafficking. He has been continuously addicted to heroin since the age of 17, has been suffering from hepatitis C since 1975 and has been HIV positive since 1987 or 1988. He has tried to overcome his addiction to heroin with various types of treatment which have all failed. From 1991 to 2008 the applicant ’ s heroin addiction was treated with drug substitution therapy.

The applicant claims that he was forced to go “cold turkey” at the beginning of his imprisonment. On 10 December 2009, after six months in prison, he was transferred to a drug rehabilitation centre in Günzburg , Bavaria, where he underwent treatment for his addiction. However, as he was secretly consuming methadone and showing no willingness to participate in the treatment programme , his detention in the clinic was terminated by a decision of the Munich Court of Appeal on 25 July 2010. The applicant was transferred to Kaisheim Prison, where he receives medication for pain relief and for the treatment of his polyneuropathy from the prison doctors on a daily basis. From the documents submitted, it can be understood that the prison doctors also allowed the applicant ’ s request for a higher dose of painkillers for more effective pain relief.

2. Proceedings before the prison authorities

On 4 May 2011 the applicant, represented by counsel, applied to the prison authorities to be granted access to his medical records. On 11 May 2011 he was informed that he could not normally get full access to his medical records, but could be given information on the content of his records with regards to a specific question. Should this specific information not fully meet his needs, he could get full access to his medical records if he could convincingly show that he needed full access to his file in order to protect his legal interests. There is no indication that the applicant insisted any further on being given full access to or specific information from his medical records.

On 6 June 2011 the applicant requested the prison authorities that his heroin addiction be treated with Diamorphin , Polamidon or another heroin substitute. Alternatively, he requested that the question whether such substitution was necessary should be examined by a drug addiction specialist. The applicant claimed that he knew from his extensive experience as a drug addict that the chronic pain he suffered was considerably alleviated when he was treated with heroin substitutes. Furthermore, he was in need of Interferon therapy in order to treat his hepatitis C infection. In view of his poor physical and psychological health, it was impossible to implement such treatment without drug substitution therapy at the same time. He further argued that after forty years of heroin addiction, there was hardly any chance of him ever being capable of leading a totally drug-free life when released from prison. However, in the past he had been able to lead a relatively normal life during the time he was on the heroin substitution programme . He had even been able to qualify as a software engineer. He also claimed that according to the relevant medical guidelines on drug substitution therapy, the “Guideline of the Federal Medical Association for Substitute Treatment of Opiate Addicts” (“ Richtlinie der Bundesärztekammer zur Durchführung der substitutionsgestützten Behandlung Opiatabhängiger ”) and the “Guideline of the Federal Joint Committee on the Methods of Medical Examination and Treatment within the Statutory Health Insurance System” (“ Richtlinie des Gemeinsamen Bundesausschusses zu Untersuchungs - und Behandlungsmethoden der vertragsärztlichen Versorgung ”), he fulfilled the criteria established by these expert associations to be admitted to drug substitution therapy. Substitution further helped to protect other prisoners from infection when using the same needles as the applicant for the consumption of illegal drugs.

On 6 July 2011 the prison doctor gave his medical opinion on the applicant ’ s request. He considered that it was neither necessary to prescribe the applicant heroin substitutes nor to consult a drug addiction specialist. The applicant had been at a drug rehabilitation centre for five months before his transfer to Kaisheim Prison, where he had been treated by medical experts with profound knowledge of drug addiction treatment. The applicant had not taken a substitute in the clinic, nor had the doctors recommended substitute treatment in prison. Prior to his detention, the applicant had shown that he was unable to live a life free of illegal drugs and crime even when being treated with heroin substitutes. He had the chance to get away from drugs while in prison, as it was difficult to obtain them. That way he also had the chance to live a drug-free life after release from prison. Should the applicant, towards the end of his prison sentence, still be of the view that he would not be able to lead a drug-free life, the question whether drug substitution therapy could be started could be reexamined when preparing him for release.

On 11 July 2011 the prison authorities, having regard to the prison doctor ’ s statement, dismissed the applicant ’ s application. Upon an appeal by the applicant, the Augsburg Regional Court quashed the prison authorities ’ decision on 4 October 2011 for lack of sufficient reasoning.

On 16 January 2012 the prison authorities again dismissed the applicant ’ s request, arguing that substitution treatment was neither necessary from a medical point of view nor a suitable measure for the successful social rehabilitation of the applicant. With regard to the medical necessity of drug substitution therapy, the prison authorities referred to the prison doctor ’ s statement, adding that the applicant ’ s situation with regard to his infection with HIV and hepatitis C was stable and did not require any treatment for which substitution was a necessary precondition. With regard to the applicant ’ s social rehabilitation, the prison authorities added that the main reason addicts underwent drug substitution therapy was to prevent them from impoverishment and from becoming part of the scene of drug-related criminality. In prison, these risks were not present. Furthermore, the applicant had already shown that substitution therapy while he was at liberty did not prevent him from consuming other drugs or committing crimes. As shown by the psychological expert during the applicant ’ s trial, the applicant had committed crimes because of his antisocial personality. Hence, even a successful cure for the applicant ’ s addiction could not prevent him from committing further crimes.

3. Proceedings before the Augsburg Regional Court

On 26 January 2012, the applicant appealed against the decision of the prison authorities to the Augsburg Regional Court. He also submitted the above-mentioned medical guidelines and the Land of Baden-Württemberg ’ s Administrative Rules for Substitution in Prison (“ Verwaltungsvorschrift des Baden- Württembergischen Justizministeriums über Substitution im Justizvollzug ”), arguing that according to the guidelines and administrative rules, he should be provided drug substitution therapy.

On 28 March 2012 the court dismissed the applicant ’ s appeal, following the prison authorities ’ line of reasoning. It added that it was not necessary to obtain the opinion of a drug addiction expert, as the prison doctors of Kaisheim Prison, who were skilled and licensed, were competent to decide on the medical necessity of drug substitution therapy. With regard to the administrative rules provided, the court stated that they were irrelevant to Kaisheim Prison, as it was not situated in Baden-Württemberg, but in Bavaria.

4. Proceedings before the Munich Court of Appeal

On 4 May 2012 the applicant lodged an appeal on points of law to the Munich Court of Appeal. On 9 August 2012 the court dismissed the appeal, holding both the procedural objections and the substantive objections to be ill-founded. In the court ’ s view, the applicant had failed to show why drug substitution therapy was the one specific medical treatment he needed. He had further failed to prove that the prison doctors of Kaisheim Prison were not qualified to decide about the medical necessity of heroin substitution. The applicant ’ s objection against the Court of Appeal ’ s decision was rejected.

5. Proceedings before the Federal Constitutional Court

On 10 September 2012 the applicant lodged a constitutional complaint. He complained that his right to respect for his physical integrity under Article 2 § 2 of the German Basic Law was infringed because he was denied drug substitution therapy, which was the only suitable therapy to treat his chronic pain, to enable Interferon therapy, and to allow him to reduce his craving for heroin and lead a “normal” everyday prison life without isolation. He further complained that his right to be heard under Article 103 § 1 of the German Basic Law was infringed, as the domestic courts had not taken into consideration all his arguments or the points of his applications.

On 10 August 2013 the Federal Constitutional Court dismissed the complaint without giving any reason (see decision no. 2 BvR 2263/12)

B. Relevant domestic law

The relevant provisions of the Bavarian Execution of Sentences Act ( Bayerisches Strafvollzugsgesetz ) concerning the examination of applications for drug substitution therapy read as follows:

Article 2: Objectives of the execution of sentences

The execution of a prison sentence serves to protect the public from further crime. It shall enable prisoners to lead a socially responsible life in the future without crime (obligation of treatment).

Article 3: Treatment during the execution of a sentence

Treatment includes all measures which may help a crime-free life to be led in future. Its purpose is to prevent of further crime and to protect victims. Treatment includes, in particular, education and training, work, psychological and social education, pastoral care and recreational activities. The type and scope of the treatment take account of the shortcomings of the prisoner which led to the commission of the criminal act.

Article 58: General Rules

(1) The physical and mental health of the prisoner must be ensured ...

Article 60: Medical Treatment

Prisoners are entitled to medical treatment if such treatment is necessary in order to detect or cure an illness, to prevent the aggravation of an illness or to alleviate its symptoms. Medical treatment includes:

1. treatment by a doctor,

...

4. the supply of medicine, dressings, and other health aids,

...

COMPLAINTS

The applicant complains under Article 3 of the Convention that the denial of drug substitution therapy was inhuman treatment, because it resulted in him being in terrible pain, had damaged his health and had isolated him. The applicant claims that he knew from his own past experience that substitution would alleviate the terrible pain he was suffering. Moreover, substitution would considerably improve his physical and psychological well-being, reduce his cravings for drugs, help him to lead a “normal” everyday life and overcome his isolation. After forty years as a heroin addict he did not stand much chance of leading a drug-free life. The applicant is of the view that according to the relevant medical guidelines on drug substitution therapy he should be substituted, and that he was discriminated against in comparison to other heroin addicts who were not imprisoned and those who were imprisoned in the Land of Baden-Württemberg, who had the opportunity to obtain substitution treatment in accordance with the relevant medical guidelines.

Invoking Article 3 of the Convention, the applicant further complains that the denial of a medical examination by an independent drug addiction specialist constituted inhuman treatment. He claims that the necessity of drug substitution therapy could not be assessed by the prison doctor, as he was not a specialist in drug addictions. Furthermore, drug substitution therapy had never been permitted at Kaisheim Prison before. Consequently, the prison doctor had never carried out substitution treatment and therefore lacked any experience. In his medical statement, the prison doctor had not elaborated on the questions whether substitute treatment was indicated in order to treat the applicant ’ s pain or whether it was necessary in order to carry out Interferon therapy, nor had he applied the relevant medical guidelines on drug substitution therapy. Substitution had been denied as a matter of principle and for ideological rather than medical reasons. The prison doctor ’ s statement had hence not been based on an independent medical examination and could not serve as a medical basis for the prison authorities ’ decision.

QUESTIONS TO THE PARTIES

1. Has the applicant been subjected to inhuman or degrading treatment in breach of Article 3 of the Convention in that he was denied drug substitution therapy in prison without examination by an external drug addiction specialist?

2. In refusing the applicant ’ s request for drug substitution therapy, did the German authorities fail in their positive obligations inherent in the effective respect for his private life? Should the authorities have had recourse to an external specialist when deciding on the applicant ’ s request?

3. In being denied drug substitution therapy, has the applicant suffered discrimination in the enjoyment of his Convention rights in comparison to heroin addicts not in prison or heroin addicts imprisoned in other parts of Germany, contrary to Article 14 of the Convention read in conjunction with Article 3 or in conjunction with Article 8 of the Convention?