CASE OF GOLUBAR v. CROATIA
No violation of Article 3 - Prohibition of torture (Article 3 - Degrading treatment;Positive obligations) (Substantive aspect)
Jon Fridrik Kjølbro;Julia Laffranque;Paul Lemmens;Georges Ravarani;Ksenija Turković
5. The applicant was born in 1955. 6. On 26 February 2014 the applicant began to serve a three-year prison sentence. He was placed in Zagreb Prison Hospital (“ZPH”). 7. On 28 February 2014 the applicant applied to a Zagreb County Court judge responsible for the execution of sentences and the head office of the Prisons Administration requesting the suspension of his prison sentence on account of his state of health. He claimed that from 5 to 12 February 2014 he had been hospitalised in Dubrava Hospital in Zagreb because he had suffered a stroke. He also had two brain arteriovenous malformations, one of which had been removed in February 2013 by means of gamma knife radiosurgery, and the three-year high-risk recovery period had not yet ended. He referred to his medical documents, which had established basal ganglia in the ventricular system with a risk of haemorrhage, increased by the stress of the prison conditions. He also claimed that in combination with the epileptic fits from which he suffered, his health issues could be life-threatening. 8. A medical report drawn up by ZPH on 6 March 2014 confirmed the claims put forward by the applicant in his request and concluded: “[The prisoner] presents a permanent high risk to himself and the institution in which he is placed. The expert opinion is that two or three years are needed for his brain condition to stabilise after the gamma knife surgery. We consider his request for a stay of his prison term medically justified.” 9. On 18 April 2014 a Zagreb County Court judge responsible for the execution of sentences dismissed the applicant’s request. This decision was based entirely on an opinion given by Dr B., an expert in internal medicine and cardiology. Dr B. concluded that the applicant was not suffering from any acute illness and that during his time in ZPH his chronic illness had not worsened. Dr B. also stated that in the event of a sudden deterioration in the applicant’s state of health, he could easily be transferred to an appropriate medical institution. Lastly, he asserted that the applicant’s current medical problems could be appropriately treated at ZPH. 10. On 25 April 2014 the applicant lodged an appeal, in which he argued that since incarceration his medical condition had been deteriorating constantly, that the ZPH doctors had themselves recommended that his prison sentence be suspended on medical grounds, and that Dr B. could not give a proper opinion on his health since he was not an expert in neurology. 11. On 8 July 2014 a three-judge panel of Zagreb County Court quashed the first-instance decision and instructed the first-instance court to order an expert opinion from a neurologist. 12. On 21 August 2014 the same Zagreb County Court judge responsible for the execution of sentences dismissed the applicant’s request. The decision was based mainly on the opinion given by Dr M., an expert in neurology. She concluded that the applicant had not been suffering from any acute illness, that his chronic illness had improved, that he had been receiving good medical care at ZPH, and that it had appropriate staff to meet the needs of the applicant as regards the medical care his condition required. 13. On 27 August and 4 September 2014 the applicant lodged appeals, in which he contested the qualifications of Dr M. and the validity of her opinion. He argued that she had not answered the question whether ZPH had adequate staff and could otherwise properly treat his medical condition. He further argued that the judge responsible for the execution of sentences had not addressed the contradictions between the findings the ZPH doctors had expressed in their opinion of 6 March 2014 and the reports of the medical experts commissioned by Zagreb County Court. He also asserted that his medical condition could only be properly treated in a specialist medical institution. 14. Following a suggestion by ZPH that there was no need for the applicant’s further hospitalisation, on 29 September 2014 the head office of the Prisons Administration ordered his transfer to Zagreb Prison. On 2 October 2014 he lodged an appeal, arguing that neither the staff nor equipment at ZPH was satisfactorily suited to carry out proper diagnostic examinations to accurately assess his medical condition. He asked for an urgent transfer to a suitable medical institution where a proper diagnostic examination could be carried out. The applicant’s appeal was dismissed on 14 October 2014 by the Prisons Administration. 15. On 31 October 2014 a three-judge panel of the Zagreb County Court dismissed the applicant’s appeal against the decision of 21 August 2014, endorsing its reasoning. 16. On 19 November 2014, at his request, the applicant was taken to the Sisters of Mercy Hospital in Zagreb so that neurological tests could be carried out. During his transfer in a police van he suffered an epileptic fit and lost consciousness. This was discovered only on arrival at the front entrance of the hospital when officers opened the back door of the van and found him lying on the floor. He spent ten hours at the hospital and was then returned to Zagreb Prison. 17. On an unspecified date the applicant lodged a constitutional complaint against the decisions concerning his request for the suspension of his prison sentence and the decision concerning his transfer to Zagreb Prison. In addition to the complaints put forward in his previous requests and appeals, the applicant also complained that during his eight months at ZPH he had not had proper access to sanitary facilities and had been obliged to ask the guards to let him out of the room each time he needed the toilet, a request which they sometimes had not answered in time. Since there had been no lift at ZPH, in order to have access to fresh air he had had to climb the stairs to his cell on the second floor, which had been a risk to his health. He further reiterated that ZPH had no neurology department or even a neurologist, so his condition could not have been properly treated there. Even though specialists from the two civil hospitals where he had been treated prior to his imprisonment had recommended that check-ups be carried out every month, he had not been given them. 18. The applicant also complained about the conditions in Zagreb Prison. He claimed that he had been placed in a cell with seven other inmates, and that a lack of fresh air in the cell had worsened his condition. There had been a squat toilet in the cell, which had not been completely private and a foul smell had emanated from it. Inmates had had to eat in their cells. There had been no lift, which had prevented him from accessing fresh air. 19. On 31 December 2014 the applicant lodged another application for the suspension of his prison sentence on health grounds, reiterating his previous arguments. He also complained that since 19 October 2014 he had not had any access to daylight and that any access to fresh air had been prevented by construction of a lift in ZPH. 20. On 5, 9, 15 and 17 January 2015 the applicant was taken to Rebro Hospital in Zagreb. A report drawn up there on 15 January indicates that there was no need for any urgent measures. It was also established that the applicant had had a high concentration of tramadol (a painkiller) and its metabolites, benzodiazepine (a class of psychoactive drug) and olanzapine (an atypical antipsychotic drug). 21. The applicant’s constitutional complaint was declared inadmissible by the Constitutional Court on 27 January 2015 on the grounds that the contested judgment had not concerned the merits of his civil rights or obligations or a criminal charge against him, and as such was not amenable to constitutional review. 22. On 18 March 2015 a Zagreb County Court judge responsible for the execution of sentences dismissed the applicant’s request of 31 December 2014. The judge relied on previous expert opinions as well as on a further opinion of Dr S., an expert in neuropsychiatry who confirmed that the applicant had not been suffering from any acute illness, that his medical condition had not worsened, and that ZPH had the appropriate capacity for his treatment in all respects. The County Court further relied on ZPH reports dated 20 and 28 January 2015 stating that the applicant had not been following doctors’ orders, had not been taking measures aimed at his treatment and had been deliberately putting his health at risk. There was no comment on the applicant’s complaints concerning lack of access to daylight and fresh air. 23. On 27 March 2015 the applicant lodged an appeal, reiterating his arguments concerning his health but made no mention of his previous complaints about lack of access to daylight and fresh air. This appeal was dismissed by a three-judge panel of the Zagreb County Court on 21 April 2015.