FIRST SECTION

Application no. 79028/12 Mihajlo LAMBEVSKI against the former Yugoslav Republic of Macedonia lodged on 5 December 2012

STATEMENT OF FACTS

The applicant, Mr Mihajlo Lambevski , is a Macedonian national, who was born in 1948 and lives in Skopje . He is represented before the Court by Ms N. Lambevska and Ms A. Lambevska , his daughters.

A. The circumstances of the case

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

The applicant was a doctor of physical medicine and rehabilitation in Skopje Physical Therapy Centre (“the Centre”). On 19 May 2010   Ms L.G.U., a director of the Centre, served on the applicant a decision imposing on him a disciplinary sanction. On that occasion, the applicant killed Ms L.G.U. stabbing her twenty-five times in the neck and chest. Between 20 May and 5 October 2010 the applicant was remanded in pre-trial detention. On the latter date, the order for detention in prison was replaced with a temporary order for “ compulsory psychiatric treatment and confinement in a medical institution” ( задолжително психијатриско лекување и чување во здравствена установа ). The confinement order was valid until the termination of the proceedings. The applicant was placed in Skopje Psychiatric Hospital .

On 22 December 2011 the Skopje Court of First Instance (“the trial court”) found the applicant guilty of murder and ordered his confinement in Demir Hisar Psychiatric Hospital (“the Hospital” , located about 200 km f rom Skopje) (“the confinement order”). The confinement order was based on several expert reports and expert oral evidence according to which the applicant had suffered f rom paranoia and he had been unable to understand and control his behaviour at the time of the murder. The court ordered the applicant ’ s confinement in the Hospital due to the fact that it was an institution of a closed type ( од затворен тип ) remote f rom the applicant ’ s place of residence. That would ensure an increased security. On 7 May 2012 the Skopje Court of Appeal confirmed this judgment. On 25 September 2012 the Supreme Court rejected as inadmissible the applicant ’ s request for extraordinary review of the final judgment.

On 23 May 2012, apparently without knowing about the Court of Appeal ’ s judgment, the applicant sought that the confinement order be enforced in Skopje Psychiatric Hospital due to his poor health. In this connection he stated that he had been diagnosed as suffering from an obstructive prostate cancer that invaded bones, heart disease, chronic thrombophlebitis and hiatus hernia . In support he submitted medical evidence. As stated by the applicant, this request remained unanswered.

On 13 June 2012 the applicant was placed in the Hospital.

On 23 August 2012 the Hospital contacted the execution-of-sanctions department of the trial court ( оддел за извршување на санкции ) informing it inter alia that:

“ ... the applicant had been diagnosed as suffering from ... other somatic diseases, which are not treated in our institution and [therefore] a treatment in Skopje Oncology Clinic is required.

In support of this letter, we provide copies of medical reports ...

As suggested by the head of the forensic department, the Hospital ’ s forensic council met on 23 August 2012 and adopted the following conclusion:

[The Hospital] and the expert team involved in [the applicant ’ s] treatment follows his mental condition and a complete and adequate treatment is taken. Concerning the somatic condition, we undertake all (measures) in order that he is adequately treated:

- by a medical car and accompanied by a team, [the applicant] is regularly transported to the Skopje Oncology Clinic as proposed by competent doctors (oncologists);

- the Hospital secures a car and a team for [the applicant ’ s] transportation to Skopje or Bitola , where, as suggested by an oncologist, the necessary examinations that cannot [otherwise] be taken in [the Hospital] are carried out;

- ... [the Hospital] completely and timely secures adequate medicaments;

In view of the foregoing, we leave on the court ’ s discretion ... to examine the possibility for [the applicant ’ s] further treatment in another adequate institution.”

On 6 September 2012 the applicant requested that the judge responsible for the execution of sanctions either terminate the execution of the confinement order of 22 December 2011 or order instead its enforcement in a medical institution in Skopje . He stated that on 5 May 2012 he had been diagnosed as suffering from obstructive prostate cancer and that his health deteriorated since then. He had been constantly transported to Skopje Oncology Clinic since he could not receive the necessary treatment elsewhere. He further stated that he had suffered from other diseases (mentioned above) that required his examination in Skopje . For those reasons he sough that the trial court either order his provisional home treatment or, in alternative, that he was confined in a medical institution in Skopje . This request remained unanswered.

On 2 October 2012 the Ministry of Justice informed the applicant that he could seize the judge responsible for the execution of sanctions who was competent to decide his request.

On 28 November 2012 the applicant addressed the President of the State seeking that the latter endeavour to secure his transfer in a medical institution in Skopje given the fact that he was travelling 400 km (roundtrip) f rom the Hospital to Skopje , where he received the necessary medical treatment. No action seems to have been undertaken regarding this request.

As stated by the applicant , his state of health deteriorated. Apart f rom the diseases mentioned above , blood has been discovered in his urine , which implied internal haemorrhage. He is transported , at least once a week , to Skopje Oncology Clinic where he receives chemotherapy. He submitted medical reports regarding his medical examinations in Skopje between 5 May 2012 and 24 January 2013 attesting to his poor state of health (prostate cancer , angina pectoris , hiatus hernia , th rom bophlebitis and the reception of anti-coagulation therapy).

B. Relevant domestic law

The relevant provisions of the Execution of Sanctions Act ( Закон за изршување на санкциите , Official Gazette no. 6/2006 and 57/2010) read as follows:

Section 7

“ ...

(5) Convicted persons can protect their rights by means and in proceedings specified by this law”

Section 36

“(1) The judge responsible for the execution of sanctions protects the rights of convicted persons, supervises the lawfulness of the execution of sanctions and ensures equality of the convicts before law.”

(2) The judge responsible for the execution of sanctions undertakes measures and decides on:

- sending persons to serve a prison sentence;

- suspension of the execution of a prison sentence;

-termination of the prison sentence and revocation of [that] termination;

- calculation of a penalty in case the competent court has not already adopted a decision on that matter;

- the time-bar of execution of a sanction or the termination of the execution of a sanction due to death of the convicted person and informs the competent court in order that relevant decision is taken;

- cooperates with competent welfare centres regarding post-penalty assistance and execution of alternative measures;

- conversion of a fine into a prison sentence;

- instalment payment of a fine and

- other issues specified by law.”

Section 78

“The judicial review of the execution of sanctions regarding treatment of convicts and their rights and duties is carried out by the judge responsible for the execution of sanctions.”

COMPLAINT

The applicant complains under Article 3 of the Convention that he does not receive a p rom pt and requisite medical care in the Hospital. In this connection he alleges that he travels 400 km , as is the roundtrip between the Hospital and Skopje Oncology Clinic , which is the only medical institution in the respondent State that can adequately treat his disease.

QUESTIONs TO THE PARTIES

1. Has the applicant exhausted all effective domestic remedies, as require d by Article 35 § 1 of the Convention? In particular, was the judge responsible for the execution of sanctions an effective remedy within the meaning of this provision in respect of the applicant ’ s request to be transferred to Skopje Psychiatric Hospital ? If that is not the case , the Government are invited to provide copies of relevant (court) decisions that militate to the effectiveness of any other remedy.

2. Does the fact that the applicant is transported from Demir Hisar Psychiatric Hospital to Skopje in order to receive the necessary medical treatment, give rise to an issue under Article 3 of the Convention?