CASE OF PEŇARANDA SOTO v. MALTA
No violation of Article 3 - Prohibition of torture (Article 3 - Degrading treatment) (Substantive aspect);Violation of Article 34 - Individual applications (Article 34 - Hinder the exercise of the right of application)
Carlo Ranzoni;Ganna Yudkivska;Marko Bošnjak;Paulo Pinto De Albuquerque;Vincent A. De Gaetano
6. The applicant was born in 1977 and at the time that he lodged the application with the Court was serving a sentence of eight years’ imprisonment in the Corradino Correctional Facility, Malta. He had been detained since 19 February 2010. 7. The sentence was imposed on him by the Criminal Court on 14 March 2012 for drug related offences. The Criminal Court also ordered him to pay a fine of 23,500 euros (EUR) as well as EUR 1,462.94 in fees payable to the experts, which were to be converted into a further term of imprisonment if not paid. On 13 April 2012 the aforementioned sums were converted into 490 days’ imprisonment. Following an amnesty and payment of the fee for the experts, the applicant was released on 14 April 2016 and flown back to Costa Rica after being given the requisite vaccinations. 8. On 12 July 2013, between 2 p.m. and 3 p.m., the applicant was assaulted by another inmate, causing the former to allegedly lose consciousness and sustaining fractures to his facial and leg bones. The Government admitted that the applicant had sustained injuries to his leg and face but argued that there was no evidence that he had lost consciousness at any time. 9. According to the applicant, disciplinary measures were taken by the prison Chief Security officer, who ordered that he be placed in solitary confinement. Thus, despite his condition, the applicant had had to pack his belongings and walk to the solitary confinement unit. At an unspecified time the prison officer brought the applicant a pair of crutches to assist him walking. According to the Government, disciplinary measures were taken against another inmate involved in the incident but not against the applicant, who had been transferred (from Division 2) to Division 6, a more secure division, immediately after the incident. They also submitted that the applicant had not been placed in solitary confinement. 10. The applicant alleged that he did not receive any medical treatment for one or two hours after the incident had taken place. Thereafter he had been kept in solitary confinement without assistance from the prison medical staff. The applicant explained that he had subsequently been seen by a doctor, who had referred him to the hospital, where he underwent surgery. He stated that a plaster cast had been put around his leg and that he had been informed that he might need to undergo surgery if his eyesight was damaged as a result of the injury of his facial bone. Regarding the period of solitary confinement, the applicant claimed that he had been held on the second floor of the building and had not been allowed to see anyone or to use the communal areas. 11. According to the applicant, the cell did not have adequate ventilation, the heat was unbearable and there was no cold water to drink since he did not have access to the ground floor. Consequently he had to drink warm water and an occasional bottle of cold water (when his friend managed to obtain one). The applicant claimed that he had specifically needed to drink water since he was taking antibiotics. 12. The heat and lack of ventilation caused the applicant, who is an asthma sufferer, to struggle with his breathing. He also complained that he had had to go to the clinic for treatment of his injuries himself since the nurses refused to visit his cell because of the unbearable heat. He had therefore had to use the staircase whilst still walking with crutches. 13. The applicant stated that he had been kept in the isolation unit for twenty-two days, and after five days had become suicidal. Subsequently he had been transferred to a unit that had fewer restrictions. The applicant complained that he had been placed in the same unit as his aggressor, putting his physical integrity at risk since he could have been attacked again. 14. The applicant submitted that upon his release from solitary confinement, he had spent most of his time in his cell. On an unspecified date he had asked to see a psychologist urgently, but was not able to speak to one for twenty-seven days. The psychologist referred the applicant to a psychiatrist, who eventually prescribed medication. However, the applicant had refused to take the medication and claimed that the psychiatrist had refused to help him. Later, he had refused to consult the prison psychiatrist because he no longer trusted the prison staff and did not want to be sent to a psychiatric hospital since the facilities there were allegedly worse than those in the prison. 15. According to the Government the applicant was admitted to the medical infirmary of the prison at 4.15 p.m. on 12 July 2013 and a referral to the emergency department of the state hospital was made at 5 p.m. The referral note issued by the doctor indicated that the applicant had swelling in the face, a bruise on one loin, and severe swelling with limited movement in his right ankle. At an unspecified time on the same day he was provided with a pair of crutches by the prison medical infirmary. On the same day he was also admitted to hospital and returned to cell 8 in Division 6 on 14 July 2013. The case summary drawn up on 14 July – before his discharge and submitted to the Court showed that all the medical investigations had been concluded and the results received prior to his discharge from hospital. According to the case summary the ankle xray revealed a fracture and there was subluxation of the right foot; there was a head injury, specifically a fracture of the orbit and of the maxillary sinus; there were no signs of injury or fluid collection in the internal organs; an ophthalmic review had been carried out and the patient had been discharged from that department as well as from the orthopaedic ward where he had undergone tests and treatment for his bone injuries. The summary also showed that the applicant had to use crutches and to avoid bearing weight for the two weeks leading up to his outpatient appointment, after which he still would not be able to bear weight fully. It ordered a change of dressing to be undertaken within three days and prescribed appropriate medicines. Records also showed that a nurse had visited Division 6 to attend to the applicant on 15 July – the note in the register reads as follows: “Nurse C. and S. came to Division 6 at about 11.35 am to visit Fernando Soto in his cell”. Other notes show that a nurse went to Division 6 on subsequent days to give inmates medication, without indicating their names. Another note also showed that a certain Ms M. (whose role is unidentified) visited the applicant on 16 July. 16. The Government submitted that the applicant had been held in Division 6 for his own safety. The Chief Security officer had ordered that the applicant should not meet the other inmate involved in the argument and that the applicant’s cell be opened for seven hours a day until further instructions. The applicant was initially placed in cell 8 (on the upper floor of Division 6), which was about six metres away from the guard room, thus making it possible to observe the applicant’s cell, which was to be left open. The Government submitted that, by order of a manager, on 21 July 2013 the applicant had been allowed to mingle with all other inmates without restriction. The applicant had then been transferred to cell 13 on a lower floor as soon as it was deemed safe for him, specifically on 26 July 2013. On 7 August 2013 he had been transferred to Division 5, which was also a secure division although it had fewer restrictions. The applicant was finally transferred to Division 3 on 22 October 2013. According to the Government, the applicant had never been kept in solitary confinement, nor had the inmate involved in the argument with the applicant been accommodated in any of the above-mentioned Divisions while the applicant was there, except for a short stay in Division 6. 17. According to the Government the first request for psychological services made by the applicant had been in April 2014. According to the documents submitted, thereafter he was seen monthly by the psychologist until April 2015 and later three or four times per month until his release in 2016 (from November 2015 onwards he had been seen by a counselling trainee). Moreover, in April 2015 the applicant had been referred for psychiatric services by the psychologist. The Government submitted that although the applicant had a past history of being suicidal, there was no record that he had attempted suicide during the period he was detained in Division 6. The report prepared by the senior psychologist in prison (dated 27 April 2015) noted that the applicant attended his sessions regularly and was making progress. It noted that he felt guilty for not having made amends with his mother before her death (a few months earlier) and that he had deliberately provoked a fight. The report described the applicant as being “edgy and hyper-vigilant but not psychotic”, his sleep was not problematic, his appetite was normal and he was cooperative. He had been diagnosed with post-traumatic stress disorder, but no other affective disorder was evident. He was put on medication for depression and further followups with the psychologist. He was seen again in a follow-up session with the psychiatrist on 4 May 2015, but on 1 June 2015 he refused a psychiatric review. 18. In a letter dated 10 July 2014, the applicant alleged that he had not received rehabilitative treatment for his fractures since the prison officials had unilaterally decided to cancel the treatment. According to the Government, on 14 July 2013, prior to being discharged from hospital, the applicant had been seen by a physiotherapist and found fit for discharge. The applicant had also been given three appointments (between July and August 2013) with the ENT department of the hospital in connection with his facial injuries. On 20 July 2013, the applicant had been referred by the prison medical officer to the emergency department of the hospital because of a recurrent swelling of his right ankle. The applicant had at the time already been taking antibiotics and his stitches were intact. On 21 July, 31 July, 28 August, and 30 October 2013, x-rays were taken of the applicant’s right ankle by the orthopaedic department of the hospital. The applicant was also referred to the ophthalmology department on 5 August 2013. Further referrals to hospital were made by the prison medical doctor, but the Government claimed they were unrelated to the injuries suffered as a result of the incident on 12 July 2013. One such referral was made on 13 June 2014. An outpatient service appointment record given to the applicant listed appointments scheduled for 18 November 2014 and 6 February 2014 at the medical outpatients’ clinic, which the applicant also attended. It is recorded that the applicant refused to attend an appointment scheduled for 12 June 2015. 19. In a subsequent letter dated 11 May 2015 (at a time when he was held in Division 3) the applicant explained that his cell window was positioned at a height of two metres and was therefore very difficult to open. It was also small and had three different bands of metal shutters, which hampered the entry of natural light. He claimed that his cell had lacked good ventilation – although there were two vents, one of them had been blocked. He alleged that the parts of the ceiling were falling apart and that white and yellow dust caused him to experience breathing problems, since he was an asthma sufferer. The applicant also alleged that the water was not drinkable and that he had therefore had to buy water with the little money that he earned. He claimed that foreign inmates were treated differently from the Maltese inmates since the former had to wait longer to have their petitions decided. 20. The Government submitted that at the time when this letter was written, the applicant was accommodated in cell 154 in Division 3. 21. The Government submitted that inmates were responsible for the upkeep of their cells. For this purpose, the materials needed to carry out basic repair work in the cells were provided free of charge. If an inmate required assistance for more specialised work, the Trade Section personnel would carry out the work necessary to keep the cell in good condition. The Government submitted pictures dated 2016 showing that the ceiling in cell 154 was in good condition and that the current resident was carrying out some works and removing paint from the ceiling, exposing the stone underneath. 22. The Government submitted that all the cells were equipped with running water which was fit for human consumption. According to certification dated 2015 that has been submitted to the Court, water in the prison (no specific location was indicated in the reports) had been certified by the Public Health Laboratory as being fit for consumption, although the mains supply and the other Divisions (including no. 3) had been recorded as having a chloride content which exceeded the recommended parameter value indicated in the relevant law. The Government submitted that the water was tested and certified approximately every six months. In addition to the availability of running potable tap water, the inmates were allowed to purchase bottled water from the residents’ tuck-shop. 23. In 2013, the applicant received EUR 27.95 every four weeks in socalled “Gratuity” money and EUR 46.90 every four weeks for work carried out assembling dolls. Between January 2013 and April 2016 the applicant received EUR 3,526.95 in total. A six-pack of water at the tuckshop cost EUR 2.24 or an individual bottle EUR 0.38. Government submitted that all inmates received equal treatment irrespective of the State of their origin. 24. In a letter dated 5 August 2015, the applicant alleged that the prison authorities had refused to forward his letters to the Court in order to dissuade him from pursuing his case before it. He was therefore corresponding with the Court through another address. 25. From the records of the correspondence sent by the applicant held at the prison authorities and submitted by the Government, it is apparent that the applicant sent registered letters to the Court on 12 February, 1 April and 3 June 2014 and an unregistered letter on 6 May 2015. No further requests were made by the applicant to send any communication to the Court, although letters were sent by the applicant to other addresses on 3 September, 22 September and 7 October 2015, and on 4 February and 6 March 2016.