TOTH v. CROATIA
Inadmissible
Christos Rozakis
The applicant, Mr Milenko Toth, is a Croatian citizen, who was born in 1962 and presently serves a prison term in the Lepoglava State Prison (Kazneni zavod Lepoglava - hereinafter the “LSP”). The respondent Government are represented by their Agent Ms Lidija Lukina-Karajković. The facts of the case, as submitted by the parties, may be summarised as follows. Following his conviction for murder in 1995 the applicant was sent to serve his prison term in the LSP. It appears from the medical documentation submitted by the Government that since 7 May 1997 the applicant has suffered from various health complications including problems with his teeth, gastritis, rheumatism and swollen joints. According to the Government, from May 1997 the applicant often sought medical help in the Prison’s dental clinic. He complained about toothache. Two dentists working there, D.K. and A.M., provided the applicant with necessary care, including implantation of fillings. In spite of that treatment, the applicant continued to complain about toothache and three of his teeth were pulled out. On 10 and 27 February 1998 Ceporex pills (antibiotic) were prescribed to the applicant. The expiry date of the pills was October 2001. The applicant still continued to complain about toothache and asked that some other teeth be pulled out. Having doubts as to the applicant’s allegations, A.M. sent the applicant to an oral surgeon on 20 March 1998. He decided that there was no need to pull out more teeth. After that the applicant stopped visiting the dental clinic. According to the applicant he did not receive proper dental care. Instead, he had continuously been given wrong medication and treated with medication which was useless and old. Due to this improper treatment he suffered immense pain and had to have four teeth removed. He once received Ceporex pills and once Amoxil pills (both antibiotics). After he took that medication he suffered strong abdominal pain. In April 1998 he went to a hospital in Zagreb where he was diagnosed with gastritis. There, he also had two teeth pulled out. When he returned to the LSP the dentists A.M. and D.K. refused to see him again. In the summer of 1999 a new dentist arrived to the Prison dental clinic and he pulled out three other of his teeth. Altogether the applicant had nine teeth pulled out. On 18 March, 1 April, 23 April and 6 May 1998, respectively, the applicant filed a criminal complaint with the Ivanec Municipality Public Prosecutor’s Office (Općinsko državno odvjetništvo u Ivancu) against D.K. and A.M., dentists in the LSP, alleging that they had administered him medication whose date of use had already expired. As a consequence he had suffered strong pain and also contracted gastritis. He alleged further that S. K., the director of the LSP, had abused his office and official authority in so far as he had allowed that the inmates in the LSP receive unhealthy food of low quality. The Public Prosecutor’s Office interviewed D.K. and A.M., examined the applicant’s medical documentation and on 6 July 1998 dismissed the above complaint, stating that the applicant had failed to show a reasonable suspicion for his allegations. The applicant was instructed that he might takeover the prosecution. On 14 July 1998 the applicant lodged a request for an investigation with the Varaždin County Court Investigations Department (Istražni Odjel Županijskog suda u Varaždinu), with the same allegations. The investigating judge of that court instructed the applicant that for the offence allegedly committed by D.K. and A.M. he had to file a motion for prosecution (optužni prijedlog) with the competent municipal court. Concerning the allegations against S.K. the investigation judge examined the reports on the control of the quality of food served to the inmates in the LSP and did not find inadequacy in the quality of food. He expressed his disagreement with the applicant’s request and forwarded the case-file to the panel of the Varaždin County Court (Županijski sud u Varaždinu) to decide thereon. On 15 July 1998 the applicant repeated some of his allegations in a letter to the Varaždin County Court Criminal Investigations Department, stating that the dentists in the LSP had administered wrong medication to him. On 20 October 1999 the applicant filed a criminal complaint with the Ministry of Justice (Ministarstvo pravosuđa Republike Hrvatske), alleging that dentist D. K. had poisoned him with wrong medication which had caused him gastritis. He alleged further that he was given the wrong medication and medical treatment by other medical personnel in the prison and was not provided with an adequate diet. On 29 October 1999 the above complaint was forwarded to the Varaždin County Court. On 29 November 1999 the applicant filed with the Ministry of Justice a request for damages caused to him due to the wrong medical treatment and inadequate diet in the LSP. By letter of 21 December 1999 the Ministry of Justice informed the applicant that it had no jurisdiction to decide upon the above request and instructed him to file his request for damages against the Republic of Croatia with a regular civil court. On 28 December 1999 the Varaždin County Court accepted the investigating judge’s disagreement with the applicant’s request for an investigation of 14 July 1998. It stated that in respect of the applicant’s allegations against the medical personnel of the LSP for the offence of medical malpractice the applicant was not entitled, according to the relevant provisions of the Criminal Procedure Act, to request an investigation but, instead, had to file a motion to indict with the competent court. As regards the applicant’s allegations against the director of the LSP the court accepted the report submitted by the investigating judge who had found, based on the reports of the inspection regularly conducted in the LSP, that the quality of food for the inmates was adequate. On 11 January 2000 the applicant appealed against the above decision to the Supreme Court. On 13 January 2000 the applicant filed with the Ivanec Municipal Court (Općinski sud u Ivancu) a motion to indict D. K. and A. M., dentists in the prison, and S. K., the director of the prison. He repeated his allegations against them. On 28 February 2000 the Varaždin Municipal Court (Općinski sud u Varaždinu) dismissed various of the applicant’s motions to indict four judges of the Varaždin County Court, the director of the LSP, a member of the prison personnel and two prison dentists. In respect of the allegations against the prison director, a member of the prison personnel and two dentists, the court found that the applicant had previously filed a criminal complaint and a request for an investigation with the public prosecutor, which were dismissed, of alleged medical malpractice and abuse of the office and official authority, while in his motion to indict he had alleged that they had accepted a bribe. Accordingly, he had to file a criminal complaint with the competent public prosecutor for alleged bribing. On 2 March 2000 the applicant filed a criminal complaint with the Ivanec Municipality Public Prosecutor’s Office against the medical personnel in the LSP for “the brutal treatment of the wounded, sick and prisoners of war and medical malpractice” alleging that they had administered to him wrong medication and failed to provide him with adequate medical treatment for his various illnesses. He also requested compensation for physical and mental suffering caused to him by ill-treatment in prison. On 8 March 2000 the applicant appealed against the Varaždin Municipal’s Court decision of 28 February 2000 to the Varaždin County Court. On 17 July 2000 the applicant wrote to Parliament alleging, inter alia, that the LSP authorities had been depriving him of medical assistance. On 19 September 2000 the Supreme Court (Vrhovni sud Republike Hrvatske) upheld the Varaždin County Court’s decision of 28 December 1998 accepting the investigating judge’s disagreement with the applicant’s request for an investigation. On 9 October 2000 the applicant lodged a constitutional complaint against the Supreme Court’s decision. On 6 December 2000 the Constitutional Court (Ustavni sud Republike Hrvatske) rejected the applicant’s complaint as inadmissible. On 4 January 2001 the Varaždin County Court rejected the applicant’s appeal against the Varaždin Municipal Court’s decision of 28 February 2000. The applicant then filed a constitutional complaint against that decision. On 11 April 2001 the Constitutional Court rejected the complaint as inadmissible. On 1 February 2000 the LSP director adopted a disciplinary measure against the applicant, ordering solitary confinement for twenty-one days, for using obscene and insulting language against the prison personnel in his letter of 21 January 2000 sent to the Ivanec Municipal Court. On 2 February 2000 the applicant filed a motion with the Ivanec Municipal Court to indict S. K., the prison director, his deputy and three other members of the prison personnel alleging that the deputy director had ordered solitary confinement against him for twenty-one days and that he had threatened to kill the applicant if he continued to file criminal complaints against him. The applicant alleged also that the members of the prison personnel had tortured him, attempted to poison him and prevented him from receiving medical treatment. On 20 February 2000 the applicant sent a letter to the president of Croatia repeating his allegations against the prison personnel. On 21 February 2000 the applicant appealed to the LSP director against the decision ordering disciplinary measure against him. On 28 February 2000 the LSP director dismissed the applicant’s appeal. On 1 March 2000 the applicant was placed in solitary confinement for twenty-one days. According to the Government, before he was placed in solitary confinement, the applicant had been examined by a doctor who found that the applicant’s health condition apart from slight digestive problems and minor back-pain was well. According to the applicant his health was not well because he suffered pain in his joints which were broken. On 3 March 2000 the Minister of Justice visited the applicant in solitary confinement. He talked to the applicant for about twenty minutes and the applicant did not complain about his treatment in solitary confinement. On 6 March 2000 the applicant filed with the Ivanec Municipal Court additional submissions to his previous motions to indict the director of the LSP and four other members of the prison authorities. He alleged, inter alia, that the prison authorities had placed him in a solitary confinement for 21 days although he was seriously ill and prevented him from using his bed during daytime. In addition he maintained his allegation that the deputy director had threatened to kill him if he continued with his allegations against the prison authorities. The submissions were sent to the Ivanec Public Prosecutor’s Office. The applicant was medically examined once again two weeks after being released from solitary confinement, on 13 April 2000 because he complained that he had breathing problems. The doctor stated that the applicant had for years been suffering from breathing problems through nose, from nose secretion and headache. On 15 March 2000 the applicant sent a letter to the Red Cross Committee alleging that he had been tortured in the LSP. On 17 July 2000 the applicant wrote to Parliament alleging that the LSP authorities had been confiscating his letters, torturing him and depriving him of medical assistance. On 18 July 2000 the Ivanec Public Prosecutor’s Office informed the applicant that it found no ground to institute criminal proceedings against the LSP personnel. It also pointed out that the applicant had not submitted any evidence in support of his allegations. On 1 September 2000 the applicant filed yet another motion with the Ivanec Municipal Court to indict the prison director and four other members of the prison authorities, repeating his previous allegations. On 26 November 2000 the applicant sent a letter to the Ministry of Justice alleging that he had been physically attacked by inmates and prison guards and requesting to be taken to another department.