CASE OF DIMCHO DIMOV v. BULGARIA (No. 2)
No violation of Article 3 - Prohibition of torture (Article 3 - Degrading treatment) (Substantive aspect)
André Potocki;Angelika Nußberger;Erik Møse;Mārtiņš Mits;Pavlina Panova;Síofra O’Leary;Yonko Grozev
6. The applicant was born in 1968 and is currently detained in Vratsa Prison. 7. In 2012 the applicant was detained in Varna Prison, serving a combined sentence of eighteen years’ imprisonment for aggravated murder, lewd acts, aggravated theft and car theft. 8. He suffers from many chronic medical conditions and a personality disorder which manifested itself in, inter alia, several attempts at self-harm and some suicide threats. 9. In 2007 the applicant was treated on the psychiatric ward of Lovech Prison Hospital. 10. Following his placement in an isolation cell in April 2008, he again threatened to harm himself and for eight days was kept almost constantly immobile by having his hands and feet handcuffed to a bed (see Dimcho Dimov v. Bulgaria, no. 57123/08, 16 December 2014, where the Court found violations of the substantive and procedural limbs of Article 3 of the Convention in that regard). 11. In early 2012 the applicant was part of a prisoner group that included Mr K.I. The latter was serving a combined sentence of six and a half years for aggravated racketeering and numerous instances of threats of murder and aggravated hooliganism. According to a later psychological report, Mr K.I. had previously been admitted many times to the psychiatric ward of Lovech Prison Hospital and he suffered from a mixed personality disorder with elements of dissocial behaviour, paranoia and emotional instability. 12. On the morning of 15 February 2012 the applicant went to the wing for prisoners who were being transferred to fetch a mattress he had allegedly lent to another inmate. When he entered the cell, Mr K.I., with whom he had had a conflict since January that year, began arguing with him, telling him that he had no right to come in and remove items. A guard intervened and took the applicant out of the wing, leaving him in the prison barbershop. According to statements made by the applicant later, Mr K.I. followed him, grabbed him by the collar through the bars separating the barbershop from the corridor, and hit him on the head and nose. In a report drawn up several days later, the social worker in charge of the applicant’s group said that there was no evidence of such an incident as no other inmate had confirmed the applicant’s allegations, and the applicant had not requested a medical examination. 13. Alerted by the guard, the social worker came and talked with the applicant, repeating that he could not go back into that wing. According to her report about the incident, her words upset him and he began arguing with her in a loud voice. That in turn irritated Mr K.I., who began to shout at the applicant. The social worker took Mr K.I. and two other inmates to a cell, where she reminded them of their duties and warned them that any violence would be in breach of prison rules and entail disciplinary measures. They agreed that they had overreacted and undertook to make efforts to put relations in the group right. After that, the social worker had a talk with the applicant, who was in a highly emotional state. She told him of Mr K.I.’s undertaking to calm the conflict. The applicant began shouting and insulting Mr K.I., who heard him and shouted back. To calm things down, the social worker had the applicant isolated in a cell. 14. The next day, the social worker received complaints from five other inmates from the group. They protested against the applicant’s return to the group, saying that he had systematically bullied and assaulted them. The applicant also filed a complaint, saying that he could no longer remain in the same group as Mr K.I. 15. As a result, on 21 February 2012 the social worker recommended that the prison governor move the applicant to another group. She was of the view that his remaining in his old group would worsen relations within it because he would take on inmates who had not taken his side in the conflict with Mr K.I., which would also be bad for his emotional well-being and security. In the meantime, the applicant was provisionally held in a cell on another floor. 16. Six days after the first incident, on 21 February 2012, a guard took the applicant back to his old corridor so that he could fetch his belongings from his locker. According to the guard’s report, filed the same day, the applicant swore at and threatened Mr K.I. when passing him by. The latter, upset, punched the applicant on the jaw. The social worker carried out an enquiry over the following days at the request of the prison governor and obtained statements from eight other inmates, confirming the events. She proposed that Mr K.I. be given a disciplinary warning and that the applicant be kept in his new group to avoid further altercations between the two. As a result of the blow he had received the applicant suffered a fractured jaw, but this was not detected immediately (see paragraphs 18, 25 and 28 below). Three weeks after the incident, on 13 March 2012, the prison governor issued Mr K.I. with a disciplinary warning. 17. The applicant expressed no wish to be given a medical examination after the incident which allegedly took place on 15 February 2012. 18. After the incident on 21 February 2012 he was brought to Varna Prison’s medical centre, where he was seen by the feldsher as the prison’s only doctor was on long-term sick leave at the time (see paragraph 40 below). The applicant told the feldsher that he had been punched next to his right ear and had pain in the ear and the lower jaw. The feldsher noted some redness in his ear, but reported nothing more serious. She also noted that the applicant had no signs of other traumatic injuries to his body. She wrote a note to the prison administration, detailing her findings. According to a statement which he made in the course of the ensuing criminal proceedings against Mr K.I. (see paragraph 35 below), the applicant asked the feldsher to send him for an X-ray, but she refused. 19. On 22 February 2012 the applicant went to the medical centre again and was given vitamins, an anti-inflammatory drug, a muscle relaxant and antibiotics. 20. He visited the centre once more on 24 February 2012 and was given a painkiller. 21. According to a statement by the applicant in the criminal proceedings against Mr K.I. (see paragraph 35 below), he repeatedly asked to be sent to an external medical specialist for an examination. 22. His next visit to the centre was on 7 March 2012, when he complained of a loss of hearing in his right ear. The feldsher decided to refer him to an external specialist. The consultation took place seven weeks later, on 26 April 2012 (see paragraph 25 below). The Government said the delay was because the applicant’s symptoms had not suggested that he had a medical condition that required urgent attention and because it took time to organise a medical examination outside the prison. 23. The applicant went to the prison’s medical centre again on 13 March 2012 and threatened to go on a hunger strike. According to a statement which he made in the course of the criminal proceedings against Mr K.I. (see paragraph 35 below), he made that threat to pressure the prison authorities to send him for a medical examination by an outside specialist. 24. His next visit to the centre was on 23 April 2012, when he obtained a painkiller but apparently did not complain further about his health. 25. On 26 April 2012 the applicant was seen by an external otolaryngologist, who noted that he was experiencing pain in his right temporomandibular joint and ears and had poor hearing. He also noted that the applicant had some redness on his eardrums. He prescribed painkillers and antibiotics, and suggested that the applicant be seen by a maxillofacial surgeon. The prison paid for the consultation. 26. On 27 April and 7 and 10 May 2012 the applicant again visited the prison’s medical centre and obtained antibiotics and analgesics. On 12 May 2012 he was taken out of prison for a consultation with a psychiatrist. 27. On 14 May 2012 the prison’s feldsher told the applicant that she would ask the prison administration to pay for a consultation with a maxillofacial surgeon. The Government explained that that had been necessary because such consultations were not covered by Bulgaria’s health insurance scheme and the prison had to make a special payment for such a consultation. 28. On 19 May 2012 the applicant was examined by a maxillofacial surgeon and given a panoramic X-ray. The surgeon noted that the applicant had a fracture of the right condyloid process that had not healed properly and post-traumatic arthritis of the right temporomandibular joint. He recommended that the applicant have physiotherapy for that joint. The consultation and the X-ray were paid for by the prison administration. 29. On 21 May 2012 the prison feldsher offered to send the applicant to Sofia Prison Hospital for physiotherapy. He refused. 30. On 15 June 2012 the applicant agreed to be sent to Sofia Prison Hospital, and was admitted on 18 July 2012. He was examined and given an X-ray of the skull. It was noted that he had a fracture of the jaw that had already healed and could no longer be operated on, and a deviated nasal septum. He was treated with antipsychotic, anticonvulsant and moodstabilising drugs, and had physiotherapy for his temporomandibular joints. He was in the hospital until 1 August 2012, when he returned to Varna Prison. 31. Between June and October 2012 the applicant visited the prison medical centre on several occasions. He was generally given pain medication and further on request external medical consultations were discussed. 32. The second consultation with an otolaryngologist took place on 27 December 2012. She noted that the applicant complained of poor hearing and pain in the right ear. She found that he had normal eardrums but poor teeth, which caused luxation of the temporomandibular joint, and also had a dysfunction of that joint. She prescribed painkillers. 33. In a medical report drawn up on 11 February 2013, the Varna Prison doctor noted that the applicant had no money to pay for surgery on his jawbone and that the national health insurance scheme did not cover it. In November 2013 the applicant had surgery for the deviated nasal septum in a hospital in Varna. 34. On an unknown date in 2012 the applicant complained to the Varna district prosecutor’s office about the incidents on 15 and 21 February 2012. In June 2012 the prosecutor’s office refused to open criminal proceedings. It found that no prison staff had committed any offences during the incidents. On appeal by the applicant, the Varna regional prosecutor’s office upheld that decision in August 2012. The applicant appealed further and, on 10 October 2012, the Varna appellate prosecutor’s office quashed the refusal to open criminal proceedings against Mr K.I., but upheld the refusal to open proceedings against prison staff. It noted that the internal inquiry had established that the incident involving the two inmates had been promptly dealt with and that there had been no culpable omissions by prison staff. It referred the case back with instructions to the lower prosecutor’s offices to check whether Mr K.I.’s actions had amounted to causing moderate bodily harm. 35. Following a criminal investigation and delays in the resulting trial due to Mr K.I.’s mental health, in February 2015 the Varna District Court found Mr K.I. guilty of causing moderate bodily harm to the applicant by breaking his jaw. It sentenced him to six years’ imprisonment and ordered him to pay the applicant 2,000 Bulgarian levs (BGN) in respect of nonpecuniary damage. The court noted that the fracture had impaired the applicant’s chewing and speech functions for at least four months and had caused him considerable pain and suffering (see прис. № 68 от 12.02.2015 г. по н. о. х. д. № 3419/2013 г., РС-Варна). 36. In March 2016, following an appeal by Mr K.I., the Varna Regional Court fully upheld the lower court’s judgment (see реш. № 61 от 07.03.2016 г. по в. н. о. х. д. № 301/2015 г., ОС-Варна). 37. In September 2014 the applicant brought a claim for damages against the Chief Directorate for the Execution of Punishments at the Ministry of Justice. He alleged that over the previous two months the authorities at Varna Prison had failed to provide him with adequate medical care for pain in the right ear, his fractured jaw and numbness in his left arm. 38. The Varna Administrative Court heard the case on 1 December 2014 and 2 February 2015, when the applicant unexpectedly withdrew his claim and the court discontinued the proceedings.