CASE OF ASSOCIATION FOR THE DEFENCE OF HUMAN RIGHTS IN ROMANIA – HELSINKI COMMITTEE ON BEHALF OF IONEL GARCEA v. ROMANIA
Preliminary objection joined to merits and dismissed (Article 35-1 - Exhaustion of domestic remedies);Preliminary objection dismissed (Article 34 - Locus standi);Violation of Article 2 - Right to life (Article 2-1 - Effective investigation) (Procedural aspect);No violation of Article 2 - Right to life (Article 2-1 - Life) (Substantive aspect)
Johannes Silvis;Josep Casadevall;Kristina Pardalos;Luis López Guerra
4. Mr Ionel Garcea was born in 1973 and died on 19 July 2007 in Rahova prison hospital. He had no known relatives. 5. At the material time, Mr Garcea was serving a seven-year sentence for a rape which he had consistently denied having committed. On the date of the criminal conviction, the courts found that he had full legal capacity (discernământ) and was thus capable of taking decisions and acting freely upon them. 6. Mr Garcea was held in Jilava and Rahova prisons and prison hospitals. He was diagnosed with epilepsy, personality disorder (impulsive and explosive), polymorphic psychosis and phlebitis of both legs. During his detention he had numerous conflicts with the prison warders, the police and the prosecutor. On several occasions he was reprimanded for “insulting authority” (înjurii aduse cadrelor) and for self-harm (inserting nails into his forehead). 7. In 2002, when he started serving his sentence, Mr Garcea contacted APADORCH from the police headquarters to inform them of his arrest. He also wrote to the association from prison. The association had paid for his legal assistance in a civil suit for damages brought against the State in connection with his detention in a previous case and in previous criminal proceedings, and had occasionally given him material support, such as medicine, paper, pens and prepaid telephone cards. 8. According to the official prison records, Mr Garcea received regular check-ups for his mental illness. He was admitted on ten occasions to the psychiatric ward of the prison hospitals for a few days each time. While in hospital he was prescribed medical treatment for his condition, which he often refused to take. On a few occasions he also refused medical examinations and often insisted on being discharged from hospital. On other occasions he signed the hospital consent form for treatment and at times he complained that he had not received medical treatment while in hospital. 9. On 4 August 2004 Mr Garcea inserted a nail in his forehead. On 9 August he was taken to the psychiatric ward of Jilava prison hospital and then to a civilian hospital. Mr Garcea agreed to have the metal object removed from his head, but later that day changed his mind. His two statements were recorded by the hospital personnel in his medical file. The nail was ultimately removed and on 13 August 2004 he was discharged from the civilian hospital and sent back to the psychiatric ward of Jilava prison hospital. 10. At the beginning of 2005 Mr Garcea attempted suicide by overdose and as a result fell into a fourth-degree coma. It is mentioned in his medical record that in the psychiatric ward he refused any medical examinations following his suicide attempt and requested to be discharged. 11. In May 2005, after a week’s stay in Rahova prison hospital where, according to the medical record, he did not receive any treatment for his phlebitis, Mr Garcea was transferred to Rahova Prison. 12. In June 2005 Mr Garcea was operated on in a civilian hospital in order to have metal fragments removed from his head (pieces of nails which he had inserted into his forehead). After the operation, the doctors performed a brain scan on Mr Garcea, only to discover that some pieces of metal had been left inside his head. Mr Garcea underwent another operation one month later. 13. According to his prison medical record, Mr Garcea was monitored by a psychologist in order to help reduce the risk of aggressive behaviour towards himself and others. 14. Mr Garcea alleged that in August 2004 he had been beaten up by the prison intervention force and then handcuffed and chained to a hospital bed for two weeks. 15. On 17 December 2004, in reply to an inquiry made by APADORCH into those incidents, the prison administration explained that there was no evidence of a breach of prison rules and that Mr Garcea’s immobilisation had been made necessary by his violent behaviour and had been approved by the prison governor. The official prison records from Jilava prison hospital mention three occasions on which Mr Garcea had been tied to his bed: on 19 and 25 August 2004 and again on 4 September 2004. 16. In August 2005, members of the APADOR-CH paid Mr Garcea another visit. He complained to them that he had been beaten up on several occasions by the warders. In particular, he stated that on 26 July 2005, at the end of a court hearing, the prison guards had pushed and slapped him in order to make him move faster. He had protested. When they had returned to the prison, the warders had tried to push him into a separate room in order to beat him up. He objected, broke a window and kept a piece of the broken glass in his hand with the intention of killing himself. The warders interpreted his gesture as an attack and called the prison intervention forces, who chained him to a bed and beat him until he lost consciousness. He was then transported to Jilava hospital. 17. The APADOR-CH complained to the prosecutor’s office attached to the High Court of Cassation and Justice about that incident, but received no answer. 18. The Government submitted an account of the above-mentioned incidents provided by the prison administration, who denied using any physical force against Mr Garcea. According to the prison administration, Mr Garcea refused to allow the prison guards to guide him to a room in order to be searched and instead became abusive, broke the glass in the door of that room and started moving towards the prison guards wielding a shard of broken glass. A member of the prison staff who escorted detainees from the court house dissuaded Mr Garcea from using the broken glass. According to the prison records, the prison staff handcuffed him because they were aware of his mental illness and of his past attempts to commit suicide. As he continued to be verbally aggressive, the guards attached his arms and legs to a bed and requested medical assistance. 19. Following their visit of August 2005, members of APADOR-CH complained to the prison administration about the conditions of detention in which Mr Garcea was being held, which they considered inappropriate for his situation. They also urged the prison administration to provide him with medical treatment for his various conditions; they pointed out that his mental health was visibly deteriorating and that despite his repeated visits to hospitals, he had not received adequate and prompt medical treatment. The hospitals’ willingness to provide medicines for him had been counteracted by the delays with which the doctors had issued the necessary prescriptions. They contended that, in their view, the lack of medical treatment for epilepsy and phlebitis amounted to torture. They also urged the prison authorities to stop provoking violent reactions from Mr Garcea through their attitude towards him and to stop using force against him. Lastly, the members of APADOR-CH asked the prosecutor’s office to deal more expeditiously with Mr Garcea’s complaint of illtreatment. 20. In June 2007, while he was being held in Jilava hospital, Mr Garcea inserted another nail into his forehead. On 7 June 2007 he was operated on in a civilian hospital. He was then sent to the Rahova prison hospital with a diagnosis of sepsis, post-extraction symptoms and acute bronchopneumonia. 21. From 16 to 26 June 2007 Mr Garcea’s condition continued to deteriorate. The Rahova prison authorities decided to send him back to the civilian hospital for examination and possibly another operation. On 4 July 2007 he was returned from the civilian hospital to Rahova prison hospital, on the basis that his general condition had improved. The medical records of the same date from Rahova prison hospital indicated that the patient’s general condition was serious. He remained in the prison hospital until his death on 19 July 2007. According to the official prison records, he was administered the prescribed antiseptic treatment in the prison hospital. On 20 July 2007 an autopsy was carried out and the observations were recorded in an autopsy report. 22. On 27 July 2007 the APADOR-CH asked the prison administration to investigate the medical treatment given to Mr Garcea and the cause of his death. It raised several queries, in particular how Mr Garcea could have contracted bronchopneumonia when he had been held only in hospitals for the past few years. It also asked whether the medical treatment had been adequate, given the lack of reaction by the medical personnel to the continuous deterioration of Mr Garcea’s condition in June and July 2007. The applicant association contended that although under the provisions of Joint Order No. 995/2007 issued by the Ministry of Justice and the Ministry of Health on 6 June 2007 (which replaced a similar order of 2003), a joint committee had to be set up to inquire into the causes of deaths in detention, no such steps had been taken in Mr Garcea’s case. 23. The APADOR-CH asked to be informed about the progress of the investigations, adding that the deceased had no relatives. 24. On 1 August 2007 APADOR-CH drafted a report into Mr Garcea’s death and sent it to the prosecutor’s office attached to the Bucharest County Court in order to help the investigation. 25. In the meantime, on 19 July 2007 the prosecutor had ordered a forensic examination of the cause of Mr Garcea’s death. The medical report concluded that the death had been caused by “multiple organ failure, as a consequence of a cerebral abscess developed because of the repeated introduction of a metal object, necessitating neurosurgery and lengthy stays in hospital”. The report also concluded that there was not enough evidence to suggest that there had been inadequate medical assistance in the case. 26. On 12 October 2007 the file was sent to the prosecutor’s office attached to the Bucharest Court of Appeal, which, on 23 February 2009, decided not to prosecute the prison doctors for improper conduct and endangering a person incapable of taking care of himself. They sent the file back to the prosecutor attached to the County Court in so far as the complaint concerned allegations of ill-treatment in detention. 27. The prosecutor’s decision was communicated to the APADOR-CH on 3 March 2009. 28. The association objected to the decision, but on 9 April 2009 the Prosecutor General from the prosecutor’s office attached to the Bucharest Court of Appeal dismissed the complaint. He considered that the association lacked locus standi to make the objection; he then re-examined the evidence of his own motion and concluded that the prosecutor’s decision was correct. 29. The APADOR-CH lodged a complaint with the Bucharest Court of Appeal against the decision of the Prosecutor General of 9 April 2009, seeking to have the file sent back and to have an indictment filed by the prosecutor. It argued that Mr Garcea had not received adequate medical treatment in prison and that his death had been caused by medical negligence in the prison hospitals. It also argued that the investigation had not been exhaustive, as the prosecutor had done no more than provide details of the medical treatment that Mr Garcea had received, without examining whether there had been medical negligence in his case. The APADOR-CH also complained that the prosecutor had not examined the allegations of illtreatment. 30. The Court of Appeal gave its ruling on 22 July 2009. It decided that the APADOR-CH had locus standi, as the High Court of Cassation and Justice had decided, in 2006, that non-governmental organisations acting in the field of human rights had the capacity to object to steps taken by the prosecutor. On the merits, the court found that the prosecutor’s decision was correct, and was supported by the evidence in the file. It therefore dismissed the objection. 31. The APADOR-CH appealed. It reiterated that Mr Garcea had not received adequate medical treatment and care, which had led to his death, and that there had been no investigation into the allegations of ill-treatment. It pointed out that the prosecutor had failed to request an expert examination of the body. 32. In a final decision of 21 October 2009 the High Court of Cassation and Justice dismissed the appeal. It reiterated that the APADOR-CH had locus standi to pursue the complaint, but found that on the merits, the prosecutor’s decisions were correct as there were no indications in the file that the prison doctors had failed to assist Mr Garcea or to provide him with adequate medical treatment. 33. As for the allegations of ill-treatment, on 23 March 2010 the prosecutor’s office attached to the Bucharest County Court decided not to pursue the investigation on the ground that there was no conclusive evidence to suggest improper medical care. The decision was quashed by the Bucharest Court of Appeal which, on 10 February 2011 sent the case back to the prosecutor, as it considered that the investigation had not been thorough and relevant evidence had not been administered. The court ordered that the investigation be pursued in order to establish: – the conditions that had precipitated Mr Garcea’s death; – whether there was a causal link between his introducing metal objects into his skull and his death; – whether the hospital procedures had been respected concerning the investigations and treatment for his various illnesses; – the conditions in 2007 which had allowed the self-harm to occur; and – whether the internal rules of the Jilava prison hospital had been respected. The investigation is currently ongoing.