CASE OF DYBEKU v. ALBANIA
Violation of Art. 3
Nicolas Bratza
6. The applicant was born in 1971 and is currently serving a prison sentence in Peqin High Security Prison. 7. From 1996 onwards the applicant has been suffering from chronic paranoid schizophrenia. For many years he has received in-patient treatment in various psychiatric hospitals in Albania. 8. On 23 August 2002 three persons died, including two children aged 10 and 13, and others were injured as a result of explosives placed in the applicant’s sister’s family’s flat. 9. On 24 August 2002 criminal proceedings were instituted against the applicant, who, on the same day, was arrested and charged with one count of voluntary homicide, inter alia, of children and one count of illegal possession of explosives. The applicant was placed in the pre-trial detention facility of Durrës Police Commissariat, where he shared a cell with an unspecified number of prisoners. 10. On 27 May 2003, on the basis of a medical report which concluded that at the time of the commission of the offence the applicant’s mental disorder was in a period of remission, the Durrës District Court ruled that the applicant was able to stand trial. Subsequently, the court found the applicant guilty and sentenced him to life imprisonment. 11. On 4 June 2003 the applicant’s counsel lodged an appeal with the Durrës Court of Appeal, claiming that the proceedings had been unfair since the experts’ report had been biased and unsubstantiated. He asked the court to order a new medical report in order to establish his state of health. 12. On 4 September 2003 and 2 March 2004 respectively, the Durrës Court of Appeal and the Supreme Court upheld the District Court’s decision. Moreover, the domestic courts dismissed the applicant’s request for a fresh medical examination. They held that the first medical assessment had been performed by impartial professionals and had complied with procedural safeguards. 13. Since December 2003 the applicant has been transferred to three different prisons to serve his sentence, namely Tirana Prison no. 302, Tepelene Prison and Peqin Prison, where he is currently being held. He has shared cells with other inmates who were in good health and has received the same treatment as them, notwithstanding his state of health. He has also regularly visited Tirana Prison’s hospital, where he has been treated as an in-patient. 14. Given the applicant’s increasingly disturbed state of mind, on 7 January 2005 his counsel initiated proceedings before the Tirana District Court seeking his release or transfer to a medical facility on the ground that his detention conditions were inappropriate to his state of health and put his life at risk. The applicant’s counsel requested the court to order that the applicant be examined by psychiatric experts. The request was based on medical reports issued by practitioners who had treated the applicant in the period from March to April 2003. 15. On 11 April 2005 the Tirana District Court dismissed the request as unsubstantiated since the medical reports submitted by the applicant’s counsel failed to prove that the conditions of his detention posed any threat to his life or state of health. 16. On 27 September 2005 and 17 February 2006 the Tirana Court of Appeal and Supreme Court respectively upheld the District Court’s decision. According to the applicant, the Supreme Court’s decision was not served on him until 3 April 2006. 17. On 25 June 2007 the Constitutional Court dismissed an appeal by the applicant on the ground that his claims related to the assessment of evidence which fell outside its jurisdiction. “A person who commits murder against: (a) a minor under sixteen years of age; ... shall be sentenced to life imprisonment or to a term of not less then twenty years of imprisonment.” “The execution judge may decide that a detainee should be released where the continuation of his detention may have consequences for his life.” 18. The relevant extracts from the Committee of Ministers’ Recommendation No. R (87) 3 on the European Prison Rules (adopted by the Committee of Ministers on 12 February 1987 at the 404th meeting of the Ministers’ Deputies), as revised and updated by Recommendation Rec(2006)2 (adopted by the Committee of Ministers on 11 January 2006 at the 952nd meeting of the Ministers’ Deputies), read as follows: “Health care 39. Prison authorities shall safeguard the health of all prisoners in their care. Organisation of prison health care 40.1 Medical services in prison shall be organised in close relation with the general health administration of the community or nation. 40.2 Health policy in prisons shall be integrated into, and compatible with, national health policy. 40.3 Prisoners shall have access to the health services available in the country without discrimination on the grounds of their legal situation. 40.4 Medical services in prison shall seek to detect and treat physical or mental illnesses or defects from which prisoners may suffer. 40.5 All necessary medical, surgical and psychiatric services including those available in the community shall be provided to the prisoner for that purpose. ... Health care provision 46.1 Sick prisoners who require specialist treatment shall be transferred to specialised institutions or to civil hospitals, when such treatment is not available in prison. 46.2 Where a prison service has its own hospital facilities, they shall be adequately staffed and equipped to provide the prisoners referred to them with appropriate care and treatment. Mental health 47.1 Specialised prisons or sections under medical control shall be available for the observation and treatment of prisoners suffering from mental disorder or abnormality who do not necessarily fall under the provisions of Rule 12. 47.2 The prison medical service shall provide for the psychiatric treatment of all prisoners who are in need of such treatment and pay special attention to suicide prevention. ...” 19. A delegation of the CPT visited Albania from 28 to 31 March 2006. The relevant parts of the CPT’s report of 6 September 2007 read as follows (emphasis added by the CPT): “11. In the report on the 2005 visit, the CPT emphasised that, in several of the pre-trial detention facilities visited (in particular, at Durrës), detained persons were being held in conditions of detention which could easily be considered as inhuman or degrading. Indeed, the accumulation of execrable material conditions, the legal prohibition of any activity inside the cell, the almost total absence of activities outside the cell, and the prolonged duration of placements in the facilities concerned was described by Committee as ‘being, in its experience, unique in a European context’. It is a matter of grave concern that from the observations made at Durrës during the March 2006 visit, the situation has clearly remained virtually unchanged. It must be added that the situation found at Fier Police Directorate was scarcely more favourable. During the high-level consultations with the Albanian authorities, the delegation’s view was also shared by the Prime Minister who stated that the conditions of detention in pre-trial detention facilities were ‘a shame for Albania’. Already at this stage, the CPT must also express its serious concern about the absence of care for a severely ill detainee who was found in his cell in the pre-trial detention facilities at Fier Police Directorate. He had been left in a catatonic state on the floor of his cell for several days, without receiving any medical attention. These issues will be addressed in detail in the following section of the present report, but the seriousness justifies them already being flagged in this section on ill-treatment. ... 23. The 2006 visit demonstrated that not a single of the specific recommendations repeatedly made in this respect by the CPT in previous visit reports had been implemented in practice, despite the explicit assurances given to the contrary by the Albanian authorities in their response to the report on the 2003 visit. In particular, in neither establishment visited were newly-arrived detainees subject to medical screening on admission (except in cases of emergency or upon request). Further, medical examinations/consultations when they did occur were still systematically carried out in the presence of police officers. It should be added that in those few cases when medical files had been opened, they lacked basic medical data and were usually accessible to non-medical staff. Such a state of affairs is totally unacceptable. 24. Further, no improvements had been made as regards the general provision of health care in either establishment visited, notwithstanding various recommendations made by the CPT in the reports on the 2003 and 2005 visits. More specifically, no steps had been taken to ensure the regular presence of qualified nursing staff (on a full-time basis at Durrës). It is particularly worrying that the Albanian authorities, in their response of 27 June 2006 to the report on the 2005 visit, totally failed to address the recommendations made by the Committee on this subject. 25. The health care provided in the pre-trial detention facilities at Fier appeared to be particularly problematic and, in a number of cases, even inexistent. In addition, conditions in the health-care facilities were appalling. The delegation received many complaints from inmates about delays in having access to the doctor and the quality of the health care provided; the delegation observed itself, on the spot, the case of one inmate in need of urgent medical care who had been left in a state of total neglect. As already mentioned in paragraph 11, a mentally ill detainee was found lying in a catatonic state on the floor of an overcrowded cell, below a leaking sewage pipe, without receiving any medical attention. He had apparently been in this situation for several days. A physical examination by the medical member of the delegation also revealed that his right leg was of intensive red colour and swollen, painful on palpation. According to fellow inmates, he had sustained the latter injury a few days earlier when he had fallen on the floor in the sanitary facilities (to which he had to be carried by other inmates). Upon consultation with staff and cellmates, it transpired that the detainee had been hospitalised, due to his serious mental disorder, and returned to the establishment two weeks before the visit. His health condition was said to have been stable for the first couple of days on his return, but to have drastically deteriorated subsequently, apparently due to the fact that he had not received the medication prescribed by the hospital. When confronted with this case, the doctor claimed that he had seen the inmate concerned, but was not able to provide any precise information about his health condition or the treatment provided. When asked about the whereabouts of the medical file of the above-mentioned detainee as well as of other detainees, the doctor affirmed that such files existed in respect of every inmate, but claimed that he had no key to the cupboard where the files were said to be stored. After a considerable delay, a key was produced by a police officer, and it came to light that there was not a single personal medical file. The only medical documentation available was a register for doctors’ visits, the last entry dating back to November 2005. The doctor’s explanation for this state of affairs was that ‘he had not recorded anything, because he had not received any medication to prescribe ever since’. ...” 20. A previous visit by a CPT delegation to Albania took place from 23 May to 3 June 2005. The delegation inspected, inter alia, Tirana Prison Hospital. The relevant parts of the CPT’s report of 2 July 2006 read as follows (emphasis added by the CPT): “61. Material conditions of detention were appalling in all the pre-trial detention facilities visited. Many detainees were being held in very cramped conditions (for example, up to seven persons in a cell of 5 m² at Vlora or up to ten persons in a cell of 8 m² at Durrës). Cells were only equipped with foam mattresses and/or blankets. In addition, access to natural light was very limited and ventilation extremely poor. The worst conditions were found at Durrës, where inmates were not even provided with mattresses or bed sheets. Further, some inmates were being accommodated in two storage rooms, which were packed with food parcels of the entire inmate population. Some inmates were found to be in a state of torpidity, and the delegation was informed that, on occasion, inmates had even fainted, as a result of extremely high temperatures and a very high level of humidity. Further, hygienic conditions in most of the cells as well as in the sanitary facilities were appalling (infested with cockroaches, etc.). Not surprisingly, many inmates were suffering from skin diseases and/or breathing problems. It must also be stressed that some of the inmates met by the delegation had already been held in this establishment for several years. ... 108. During the follow-up visit to the prison hospital in Tirana, the delegation mainly focused on the situation of psychiatric patients. It also reviewed the measures taken by the Albanian authorities in the light of the recommendations made after the 2000 visit regarding the prison hospital as a whole. ... 110. Material conditions in the prison hospital had significantly improved since the 2000 visit. All cells were of a reasonable size, had good access to natural light and artificial lighting, and were well equipped (bed, bedside table, table, chair, radio). However, the sanitary facilities were found to be in a very poor state of repair and hygiene. The CPT recommends that steps be taken to remedy these deficiencies. Further, many complaints were received from patients about the poor quality and quantity of the food provided. Steps should be taken to review the arrangements for the provision of food at the prison hospital. 111. The CPT remains very concerned about the almost total lack of out-of-cell activities for patients at the prison hospital. As regards patients who had been declared criminally irresponsible, no out-of-cell activities were organised for them, and outdoor exercise was only provided on an irregular, less than weekly, basis, and for less than one hour each time. It is all the more worrying that many of the patients concerned had been staying at the prison hospital under such conditions for several years. Further, no outdoor exercise at all, nor any other out-of-cell activities were offered to any of the other patients. Thus, except for access to sanitary facilities, patients were usually confined to their rooms 24 hours per day, the only occupation being reading and listening to the radio. The hospital also had no library. Such a state of affairs is totally unacceptable and constitutes a flagrant failure on the part of the Albanian authorities to implement a recommendation which had already been made after the 1997 visit and reiterated after the subsequent visits to the prison hospital. The CPT calls upon the Albanian authorities to take immediate steps to ensure that all patients whose state of health permits are offered at least one hour of outdoor exercise per day. Further, the Committee reiterates its recommendation that a wider range of activities be offered to long-term patients in the prison hospital and that special attention be paid to juveniles serving long-term sentences. 112. The CPT welcomes the recent reinforcement of health-care staff (two additional doctors and one psychologist) at the prison hospital. The delegation was informed that plans were afoot to increase the number of nursing staff. The CPT would like to receive updated information on this matter. 113. As regards the treatment provided to patients, the situation remained, on the whole, unchanged. As in 2000, psychiatric treatment was based exclusively on pharmacotherapy. There were no individualised treatment plans or individual psychotherapy, occupational therapy or group therapy. In this respect, the CPT wishes to stress once again that psychiatric treatment should be based on an individualised approach, which implies the drawing up of a treatment plan for each patient indicating the goals of treatment, the therapeutic means used and the staff member responsible. The treatment plan should also contain the outcome of a regular review of the patient’s mental health condition and a review of the patient’s medication. The treatment should involve a wide range of rehabilitative and therapeutic activities, including access to occupational therapy, group therapy, individual psychotherapy, and sports. In addition, patients should have regular access to suitably equipped leisure rooms; it is also desirable for them to be offered education and suitable work (cf. also paragraph 111). The CPT reiterates its recommendation that the psychiatric treatment offered to patients at the prison hospital be reviewed, in the light of the above remarks. 114. As regards contact with the outside world, it is praiseworthy that patients now have regular access to a telephone (once per week). As regards visits, the entitlements of patients were identical to those of inmates held in prisons. In this connection, reference is made to the remarks and recommendation made in paragraph 136. 115. The CPT noted that, since the beginning of 2005, agitated patients were no longer shackled to their bed with hand- and ankle-cuffs. Further, no excessive recourse to means of restraint (leather straps; sedative medication) or seclusion was observed. However, there was no special register on the use of means of restraint/seclusion. Steps should be taken to remedy this shortcoming. 116. The confidentiality of medical examinations/consultations and data was not respected at all at the prison hospital. In this connection, reference is made to the remarks and recommendations made in paragraph 127. 117. Persons who had been declared criminally irresponsible were subject to an involuntary placement order for an indefinite period. In such cases, [Article 46 of the Criminal Code] provides that the necessity of that placement be reviewed by the court ex officio after one year. However, the delegation was informed that such judicial reviews had never been carried out ex officio, but only upon request by the person concerned or his lawyer. The CPT calls upon the Albanian authorities to take immediate steps to ensure that the review procedure under [Article 46 of the Criminal Code] is carried out in respect of all persons who have been declared criminally irresponsible.” 21. The Amnesty International Annual Report 2007 stated, with reference to the state of human rights in Albanian prisons: “Conditions of detention Despite an EU-supported programme of prison reform and some improvements to detention conditions, these were still generally very poor and characterized by overcrowding, poor hygiene and sanitation, and inadequate diet and health care. Contrary to Albanian law and international standards, minors were still sometimes held together with adult detainees, and remand and convicted prisoners shared cells. Mentally ill prisoners were often held in prisons instead of being sent for medical treatment in specialized institutions in accordance with court decisions. Detainees held in remand cells in police stations suffered particularly harsh conditions, and there were frequent complaints. Conditions were particularly poor, largely due to overcrowding, in Durrës, Elbasan and Korça police stations.”