ÖZEL v. TURKEY
Inadmissible
Guido Raimondi;Nebojša Vučinić;Paulo Pinto De Albuquerque;Peer Lorenzen
The applicant, Mr Mehmet Veysi Özel, is a Turkish national, who was born in 1971. He is currently serving a sentence in the İzmir T-Type Prison. On 5 September 2001 the applicant was arrested and taken into police custody on suspicion of membership of an illegal organisation, namely the Hizbullah. On 15 October 2001 the applicant was placed in detention pending trial. On 30 December 2009 he was convicted of attempting to undermine the constitutional order under Article 146 § 1 of the former Criminal Code. On 26 January 2011 the Court of Cassation upheld his conviction. At the time of the events giving rise to this application, the applicant was being held in detention at the Diyarbakır High Security Prison, first pending his trial, subsequently as a convict. The applicant suffers from diabetes mellitus type-2 (formerly called noninsulin dependent diabetes). On an unspecified date in early 2008, the prison doctor at the Diyarbakır High-Security Prison referred the applicant to a hospital for what appeared to be routine medical controls in relation to his diabetes. The prison authorities’ initial attempt to escort him to the hospital as instructed was turned down by the applicant on the ground that the relevant tests needed to be done on an empty stomach. He therefore asked the authorities to delay his transfer to the hospital until the next morning. On 25 March 2008, when the applicant had still not been taken to the hospital despite what he alleged to be a two-month lapse since the referral by the prison doctor, he submitted a complaint to the Diyarbakır Enforcement Judge (infaz hakimliği) against the prison authorities, whom he accused of neglecting his health and treatment. On 26 March 2008 he was taken to the Diyarbakır State Hospital for his medical consultation. The applicant has not submitted a copy of the examination report. After reviewing the applicant’s medical file, on 11 April 2008 the Enforcement Judge confirmed that the applicant had been undergoing regular treatment for his type-2 diabetes; that he had been prescribed antidiabetic medication and been provided with a glucose measurement kit to monitor regularly his glucose levels while in the prison; and that he had been referred to the hospital at the discretion of the prison doctor despite the absence of a request from the specialist at the hospital for such control. He added that in any event, the applicant had been taken to the hospital on 4 and 26 March 2008 for his controls and concluded that there had been no negligence in the provision of medical treatment to the applicant. He also ordered that a copy of the applicant’s complaint be sent to the Diyarbakır Public Prosecutor for an assessment on whether any criminal liability arose on the facts. On 2 May 2008 the Diyarbakır Assize Court rejected the applicant’s objection to the decision of the Enforcement Judge and similarly referred the matter to the Diyarbakır Public Prosecutor. On 29 May 2008 the Diyarbakır Public Prosecutor decided not to bring a prosecution against the relevant prison authorities, on the grounds of lack of evidence indicating neglect. On 30 October 2008 the Siverek Assize Court upheld the public prosecutor’s decision. According to the documents in the case-file, the applicant also suffered from a neuropathic condition, manifesting itself as intermittent numbness in his right leg, for which he was prescribed medication by a neurologist on 13 March 2009. It is not clear from the information available whether this condition was related to his type-2 diabetes. On 23 September 2009 the applicant was taken to the Diyarbakır State Hospital for a neurological consultation. Upon reviewing the CT scan and X-ray of his head, the neurologist who examined the applicant recommended that he also see a neurosurgeon. There is no copy of the neurologist’s examination report in the case-file. While at the hospital, the applicant also consulted a specialist in internal medicine, who told him to continue with his medication and diet and requested to see him again in three months. He did not, however, see a neurosurgeon at the hospital on that day. On 27 October 2009 the applicant lodged a complaint with the Diyarbakır Enforcement Judge against the prison authorities whom he accused of delaying his neurosurgical examination despite his earlier referral by the neurologist. On 3 November 2009 the applicant was examined at the Diyarbakır State Hospital by a neurosurgeon, who recommended the placement of fibreboard under his mattress. It appears from the report in the case-file that the neurosurgeon did not make a new diagnosis or recommend a different course of treatment. On 3 December 2009 the Diyarbakır Enforcement Judge held that since the applicant had already been examined by a neurosurgeon on 3 November 2009, there was no need to take a further decision on his claim. The judge, however, forwarded the applicant’s complaint to the Diyarbakır Public Prosecutor for a review of his allegations. No further information has been provided to the Court as to any decisions taken by the public prosecutor in this regard. According to the medical reports in the file dated 31 March 2005, 8 October 2008 and 29 December 2008, the applicant was deemed capable of measuring and monitoring his own blood glucose levels with his glucose measurement kit. Furthermore, it appears from the report dated 29 December 2008, issued by an endocrinologist, that the applicant was prescribed rapid acting insulin (20 units in the morning and 14 units in the evening), by injection with an insulin pen, to complement his anti-diabetic drugs in minimising the rise in his blood sugar following meals. The categorisation of his diabetes as type-2, however, remained unchanged. In the meantime, on 2 September 2008 the applicant filed another complaint with the Diyarbakır Enforcement Judge. He argued that despite his documented medical condition, the food that he was given in the prison did not comply with the recommended diabetic diet. He therefore requested authorisation to purchase a stove to cook his own food or, alternatively, demanded the provision of separate diet food to meet his specific needs. On the same day, the prison management submitted a letter to the Diyarbakır Enforcement Judge, explaining that in view of the limited budget, they did not have the means to offer individualised dietary programmes to prisoners. However, the meal programme at the prison was being prepared in consultation with the prison doctor, taking also into account the needs of the inmates with special dietary requirements (who were 142 out of a total of 750). In cases where a particular meal was not appropriate for their consumption, suitable alternatives were being provided for the persons concerned; the prison canteen was also available to all inmates, who could moreover store food in the refrigerators provided in their cells. They submitted a sample weekly diet menu in support of their arguments. Having regard to the information provided by the prison management, the applicant’s medical reports and the dietary plan prepared by Dicle University Hospital for patients with diabetes, the Diyarbakır Enforcement Judge decided on 24 September 2008 to dismiss the applicant’s request for an individualised meal plan. On 5 November 2008 the Diyarbakır Assize Court rejected the applicant’s objection to the Enforcement Judge’s decision. While serving his prison sentence the applicant enrolled in the Faculty of International Relations at the Open University (distance learning courses). On an unspecified date, the applicant requested authorisation from the prison management to obtain, with his own means, an “MP4 player”, a portable media player, to study English through listening to recorded language courses, which he claimed was essential for his international relations courses. On 4 December 2009 the General Directorate of Prisons and Detention Places of the Ministry of Justice (“the General Directorate”) refused the applicant’s request, on the grounds that MP4 players were not listed amongst the goods and devices authorised in prisons under the relevant regulation. The applicant was informed that he could object to this decision before the Enforcement Judge, which he did. On 31 December 2009 the Diyarbakır Enforcement Judge dismissed the applicant’s request on the same grounds as the General Directorate and on 14 January 2010 the Diyarbakır Assize Court upheld this decision.