JEGOROVS v. LATVIA
Inadmissible
George Nicolaou;Ineta Ziemele;Krzysztof Wojtyczek;Nona Tsotsoria;Päivi Hirvelä;Paul Mahoney
1. The applicant, Mr Jevgēņijs Jegorovs, is a “permanently resident noncitizen” of the Republic of Latvia, who was born in 1981 and is currently serving a prison sentence in Olaine. He was represented before the Court by Ms A. Kalēja, a lawyer practising in Riga. 2. The Latvian Government (“the Government”) were represented by their Agent at the time, Ms I. Reine, and subsequently by Ms K. Līce. 3. The relevant facts of the case, as submitted by the parties, may be summarised as follows. 4. On 11 September 2003 the applicant was admitted to hospital with severe head injuries. Information provided by the Health Inspectorate (Veselības Inspekcija) on 7 May 2010 stated that he “had undergone an urgent operation – skull trephination”. 5. The hospital records stated that on 21 September 2003 the applicant “had fled” from the hospital. According to information provided by the Health Inspectorate on 7 May 2010, he had left the hospital “without completing the treatment, which [included] possible plastic surgery on his skull, and without receiving further recommendations for treatment ...”. It appears that after having left the hospital the applicant did not request medical assistance. 6. On 2 March 2004 a doctor visited the applicant at home in connection with cramps. The applicant refused to go to a hospital. 7. According to the applicant, he started to have epileptic seizures eight months after the surgery in 2003. He learnt from a conversation with a doctor who had operated on him that he would need to pay for the plastic surgery and he could not afford it. On 27 April 2009 the applicant informed the Court that he had enquired with the State authorities whether he could donate one of his kidneys in exchange for payment, in order to have the plastic surgery. 8. On 2 September 2005 the applicant was detained in Central Prison. 9. On 25 January 2007 the applicant was transferred from Central Prison to Daugavpils Prison. 10. On 1 November 2008 Daugavpils Prison was merged with Grīva Prison. The newly established prison was renamed Daugavgrīva Prison. 11. The applicant was held in the Daugavpils wing of Daugavgrīva Prison. 12. The applicant submitted that he had been placed in the following prison cells: - cell no. 203, between February 2007 and 22 April 2008; - cell no. 205, between 22 April and 8 May 2008; - cell no. 401, between 8 and 9 May 2008 (investigation cell); - cell no. 107, between 9 and 10 May 2008 (quarantine cell); - cell no. 205, between 10 and 14 May 2008; - cell no. 212, between 14 and 19 May 2008; - cell no. 217, between 19 May 2008 and an unspecified date. 13. On 12 November 2010 the applicant was transferred to Olaine Prison to serve the remainder of his sentence. 14. On 6 or 7 September 2005 the applicant underwent a medical examination in Central Prison. The diagnosis read as follows: “Consequences following a head trauma with skull trephination in 2003. Symptomatic epilepsy (?) Post-traumatic encephalopathy. Alcohol and heroine dependency since 2001.” 15. According to information from the Health Inspectorate dated 25 February 2008 (see paragraph 63 below), on 7 September 2005 the applicant had stated that he was having seizures in which he lost consciousness. A prison psychiatrist then recommended that a warden (uzraugs) be assigned to the applicant and that he be supervised by medical staff. 16. On 26 October 2005 the following entry was made in the applicant’s medical file: “Condition after a paroxysmal seizure with loss of consciousness (stāvoklis pēc paroksizmālas samaņas zuduma lēkmes)”. It was noted that half an hour earlier the applicant had had a seizure with loss of consciousness and cramps, but without biting of the tongue. 17. In that connection, the applicant was prescribed anti-epileptic medication. He was hospitalised from 11 to 28 November 2005 for monitoring and treatment, and received preventive treatment (Finlepsin). No seizures were observed. 18. On 29 January 2007 the applicant requested that the Inspectorate of Quality Control for Medical Care and Working Capability (“the MADEKKI”) refer him to a hospital for treatment. On 12 February 2007 the MADEKKI responded that the request was outside its competence and advised the applicant to consult the prison medical staff. 19. In 2007 the applicant requested a disability assessment, which he had not had prior to his detention. 20. In October 2007 the applicant underwent a full medical examination, including a pulmonary X-ray. 21. On 18 October 2007 an electro-encephalogram revealed “slightly increased epileptiform activity (nedaudz izteikta epileptiforma aktivitāte)”. The applicant was administered medication for the treatment of epilepsy and for the improvement of the brain function, and tranquilisers. 22. On 4 December 2007 the applicant was certified category 3 disabled (moderate disability) due to the consequences of the head injuries in 2003 and post-traumatic encephalopathy. 23. In 2007 the applicant had twenty-eight out-patient medical examinations, fifteen of which related to headaches. In 2008 he had five out-patient examinations, four of which concerned headaches. 24. The applicant did not have a pulmonary X-ray examination in 2008. 25. On 11 May 2009 the applicant underwent a pulmonary X-ray examination. 26. On 21 May 2009 the applicant was taken to the prison hospital in Olaine with suspected tuberculosis. 27. At the hospital the following diagnosis was made: “Infiltrative tuberculosis pneumonia [of] the left lung ... Consequences following a serious head trauma with skull trephination in 2003. Symptomatic epilepsy. Prolonged depressive reaction. Alcohol and heroine dependency. Factors contributing to illness – smoking as of age eleven [and] use of alcohol and drugs.” 28. A neurologist at the prison hospital in Olaine concluded that the applicant had not had an epileptic seizure for a considerable period of time and epileptiform activity had not been observed. Therefore, the applicant was prescribed an anti-epileptic drug (Finlepsin) for six months. The doctor noted that in six months’ time the applicant should undergo an electrocardiogram and a decision would be made about stopping the anticonvulsant medication. 29. The applicant remained in hospital until 1 December 2009. 30. On 3 December 2009 the applicant was transported back to Daugavgrīva Prison. 31. In 2009 the applicant had ten out-patient medical examinations, three of which concerned headaches. 32. The information from the Health Inspectorate dated 7 May 2010 stated that the applicant did not appear to have had any epileptic seizures while in detention, but that he had received “throughout his detention antiepileptic medication (Finlepsin, carbamazepine) ... in order to prevent possible epileptic seizures ...”. It was also noted that while in detention he had periodically refused to take the medication, which fact had been attested by entries in his medical file. 33. With respect to tuberculosis, information from the Ministry of Justice dated 10 May 2010 stated that in 2009 the applicant had been provided with full treatment. He had been cured and discharged in a satisfactory state of health. 34. According to the applicant, he experienced epileptic seizures and required plastic surgery on his skull. 35. In response to the Government’s additional observations, the applicant submitted the decision establishing his disability for the period from 8 January 2013 to 7 January 2018. That decision stated that the applicant had functional limitations related to traumatic epileptic seizures. It was based on an expert report of 8 January 2013. The applicant did not furnish a similar report indicating that he had experienced epileptic seizures while in Daugavgrīva Prison up until 2010 (see paragraph 13 above). 36. On 11 May 2008 the applicant complained to the Prisons Administration and the prosecution about the conditions in Daugavpils Prison. He described the conditions of detention and specified the state of affairs in cell no. 205. The description he gave appeared to be broadly the same as the one he submitted before the Court (see paragraph 79 below). He indicated, inter alia, that the conditions were in breach of Article 3 of the Convention and requested that his complaint be considered in substance. 37. The prosecution forwarded the submission to the Prisons Administration. 38. In connection with the applicant’s complaints, on 9 June 2008 Daugavpils Prison informed the Prisons Administration that the applicant had been held in cell no. 205, which complied with article 77 of the Sentence Enforcement Code but was in need of “cosmetic repair”. 39. The Prisons Administration’s response no. 1/12-J/2198/2261 dated 12 June 2008 stated that in the course of its inquiry it had been established that cell no. 205 in Daugavpils Prison, in which “[the applicant] had stayed, [did] not, indeed, comply with the ... statutory requirements and cosmetic repair of the cell [was needed] ...”. 40. The letter also stated that following the applicant’s submission of 3 June 2008 to the Prisons Administration, the matters raised by him had been explained to him and that he had no claims against Daugavpils Prison. The Prisons Administration thus deemed that it had examined the applicant’s complaints of 11 May 2008. 41. According to the applicant, he withdrew his complaints under pressure from the Daugavpils Prison administration. 42. It appears that in July and August 2009 the applicant wrote to the Health Inspectorate, the prosecution and the Prisons Administration in connection with his having contracted tuberculosis. 43. The applicant claimed that, whereas he was supposed to have been X-rayed every twelve months, he had not been X-rayed at all in 2008 and had had to wait nineteen months, until May 2009, for an X-ray. Referring to document no. 1/12-J/2198/2261 (see paragraph 39 above), he pointed out that the prison governor had agreed that the cells were damp and had told him that there were no funds for repair work. He requested that a comment be made on the fact that he had fallen ill with tuberculosis. The relevant documents would then be attached to his complaint and sent to the Court. 44. In its reply of 19 August 2009 the Health Inspectorate indicated that the applicant had been suspected of having contracted tuberculosis on 21 May 2009, after the annual pulmonary X-ray, as required by paragraph 5 of Cabinet of Ministers Regulation no. 199 (2007). The applicant had then been referred to the prison hospital. 45. The Inspectorate stressed that the applicant had had no clinical indications of tuberculosis requiring an unplanned X-ray examination. 46. The Inspectorate also stated that it had sent to the Prisons Administration the part of the applicant’s request concerning unsatisfactory living conditions in Daugavgrīva Prison. 47. The Inspectorate did not indicate in its letter that the responses given could be appealed against. 48. In August 2009 the Prisons Administration received the applicant’s three complaints. One of them had been forwarded by the Health Inspectorate and another by the prosecution. 49. On 10 and 27 August 2009 the Prisons Administration gave the applicant identical responses to all three complaints, to the effect that they had not been made in the State language. The Prisons Administration referred to section 10(2) of the State Language Law (Valsts valodas likums) and indicated as follows: “Documents may be submitted in a foreign language in exceptional situations, where immediate action by the State operational services or other competent institutions is required in order to protect a person’s rights and property interests, which may be violated as a result of unforeseen, exceptional circumstances or an offence committed or planned.” The Prisons Administration found that the circumstances set out in the applicant’s complaints did not amount to exceptional circumstances in which a document in another language could be considered. It refused, therefore, to consider the applicant’s complaints. 50. The Prisons Administration indicated that each of the three refusals could be appealed against to the Ministry of Justice. 51. On 14 September 2009 the applicant informed the Court that as of February 2009 he had been complaining to the prison medical unit of weight loss. Therefore he had difficulty understanding the Health Inspectorate’s response of 19 August 2009 (see paragraphs 44 and 45 above). 52. On 9 June 2007 the MADEKKI received a request from the applicant to expedite the surgery recommended on his skull because he had been suffering from headaches and epileptic seizures. 53. Between June and September 2007 the MADEKKI carried out an inquiry. 54. On 20 September 2007 the MADEKKI declared that it had found no violations in the applicant’s treatment in Daugavpils Prison. It stated that no one had seen the applicant’s epileptic seizures and that no related injuries had been observed. The applicant had not submitted any documents on the recommended surgery and his medical file contained no entries about it. 55. The MADEKKI decided to terminate the administrative violation proceedings. 56. That decision was subject to appeal to the head of the MADEKKI. 57. On 24 October 2007 the MADEKKI received a request from the applicant concerning the refusal to carry out a head tomography free of charge at the prison hospital. 58. Between October and November 2007 the Health Inspectorate (former MADEKKI) carried out an inquiry. 59. On 28 November 2007 the Health Inspectorate found no violations in the applicant’s treatment between 4 September and 15 November 2007. It noted that he had complained of headaches and dizziness, and had claimed to have had epileptic seizures, which no one had ever seen. Furthermore, on 6 September 2007 he had refused to take his medication. 60. It decided to terminate the administrative violation proceedings. 61. That decision was subject to appeal to the head of the Health Inspectorate. 62. On 5 February 2008 the Health Inspectorate received a complaint from the applicant that the head of the Daugavpils Prison medical unit had not provided in the notes on the applicant’s health (veselības izziņas) the dates of his epileptic seizures. 63. On 25 February 2008 the Health Inspectorate responded that it had never been recorded in the applicant’s medical file that he had been observed in a state of unconsciousness, suffering from cramps or the consequences of seizures – a bitten tongue or signs of injuries, or in a state of confusion. Seizures with loss of consciousness had been recorded on 2 March 2004, when a doctor had visited the applicant at home, and on 7 September 2005, when the applicant had been examined in Central Prison. However, those entries had been based on information given by the applicant himself. The Inspectorate further provided information as outlined above (see paragraphs 15-17 above). 64. On 12 March and 1 April 2008 the Health Inspectorate received requests from the applicant that plastic surgery be carried out on his skull because during epileptic seizures he could sustain a brain injury and die. 65. Between March and May 2008 the Health Inspectorate carried out an inquiry. 66. On 8 May 2008 the Health Inspectorate established that the applicant had regularly been administered Finlepsin and had received treatment with respect to his complaints of dizziness. The Inspectorate concluded that the applicant was continuing to claim that he was having epileptic seizures which no one had ever observed. The Inspectorate found no violations in the applicant’s treatment in Daugavpils Prison. 67. It decided to terminate the administrative violation proceedings. 68. That decision was subject to appeal to the head of the Health Inspectorate. 69. Following the Court’s inquiry, on 27 April 2009 the applicant stated that he had appealed against the Health Inspectorate’s decision of 8 May 2008. The appeal had been sent from the prison on 14 May 2008, but it had not been received by the Health Inspectorate. 70. In his application to the Court the applicant stated that he could have applied to the administrative courts, but that submissions needed to be made in the State language, which he barely knew. No translation service was provided for detainees, and in any case he could not have afforded such a service. 71. Article 77 of the Sentence Enforcement Code (Sodu izpildes kodekss) reads as follows: “Convicted persons ... shall be ensured living conditions that are in conformity with epidemiological safety and hygiene standards. The standard living space in dormitorytype prison premises for one convicted person may be no less than 2.5 square metres for men ... but in single-occupancy cells – no less than 9 square metres. Convicted persons shall be allotted an individual sleeping place (guļamvieta) and shall be provided with bedding items (gultas piederumi). Convicted persons shall be provided with underwear (veļa) corresponding to the season. ... Convicted persons shall receive nutrition that ensures the normal functioning of the body. Nutritional norms may vary in view of the nature of work performed by a convicted person. ...” 72. Paragraph 17 of Cabinet of Ministers Regulation no. 423 (2006), effective from 3 June 2006, provides that penal institutions must ensure that hygiene standards of convicted persons are complied with. Under paragraph 19 of the Regulation, a convicted person must take a sauna or a shower, and change underwear and bed linen, at least once a week. 73. The Cabinet of Ministers Regulation no. 199 (2007), effective between 28 March 2007 and 23 January 2014, governed the medical care of convicts in penal institutions. Its relevant provisions were cited in the case of Fedosejevs v. Latvia ((dec.), no. 37546/06, § 34, 19 November 2013). Furthermore, under paragraph 5 of the Regulation a preventive examination of a convicted person had to be carried out once a year. The types of preventive examination were determined every year by the head of the Prisons Administration. 74. The functions under the domestic law of the MADEKKI and its successor, the Health Inspectorate, have been set out in the case of Antonovs v. Latvia ((dec.), no. 19437/05, §§ 63 et seq., 11 February 2014). The Cabinet of Ministers Regulation no. 76 (2008), in force as of 9 February 2008, stipulates the functions of the Health Inspectorate. Its relevant provisions read as follows: “11. Decisions and action of a public authority (faktiskā rīcība) of the [Health] Inspectorate’s officials may be appealed against ... to the head of the Inspectorate. A decision of the head of the Inspectorate may be appealed against to a court. 12. Decisions and action of a public authority ... of the head of the [Health] Inspectorate ... may be appealed against to the Ministry of Health. A decision of the Ministry of Health may be appealed against to a court.” 75. Paragraph 14 of Cabinet of Ministers Regulation no. 827 (2005), effective from 5 November 2005, reads as follows: “Administrative acts (administratīvie akti) issued by the head of the [Prisons] Administration and his or her action of a public authority may be disputed by applying to the Ministry of Justice. A decision of the Ministry of Justice may be appealed against to a court.” 76. The Administrative Procedure Law (Administratīvā procesa likums) took effect on 1 February 2004. It provides, among other things, for the right to challenge administrative acts and actions of public authorities before the administrative courts (see D.F. v. Latvia, no. 11160/07, § 40, 29 October 2013, and Melnītis v. Latvia, no. 30779/05, § 24, 28 February 2012). 77. Section 10 of the State Language Law, which was passed on 9 December 1999 and entered into force on 1 September 2000, reads as follows: “(1) All institutions, organisations and establishments (companies) shall ensure acceptance and examination of documents drawn up in the State language. (2) State and local government institutions, courts and institutions belonging to the judicial system, and State or local government establishments (companies) shall accept ... and examine only documents in the State language, except in cases as prescribed in subsection (3) ... The provisions of this section do not apply to submissions of persons to the police and medical institutions, rescue services and other institutions in cases of urgent calls for medical assistance, the commission of crimes or other violations of the law, or calls for emergency assistance in cases of fire, accident or other emergencies. (3) Documents ... in a foreign language shall be accepted if attached thereto is a translation into the State language, certified in accordance with the procedures prescribed by the Cabinet of Ministers, or notarised. Documents issued on the territory of Latvia by the day this Law comes into force do not require translation into the State language. ...”