CASE OF BAGDONAVIČIUS v. LITHUANIA
No violation of Article 3 - Prohibition of torture (Article 3 - Degrading treatment) (Substantive aspect)
András Sajó;Egidijus Kūris;Krzysztof Wojtyczek;Nona Tsotsoria;Paulo Pinto De Albuquerque;Gabriele Kucsko-Stadlmayer
5. The applicant was born in 1964. He is currently serving a prison sentence in the Pravieniškės Correctional Home (Pravieniškių pataisos namai – atviroji kolonija). 6. In March 2009 the applicant was arrested and placed in pre-trial detention on suspicion of several instances of trafficking drugs in very large amounts as part of an organised group. 7. Between 30 March 2009 and 14 June 2010 the applicant was held at Lukiškės Remand Prison (Lukiškių tardymo izoliatorius - kalėjimas) in cells which measured approximately eight square metres and which housed between two to four detainees. 8. On 14 June 2010 the applicant was transferred to Kaunas Remand Prison (Kauno tardymo izoliatorius). According to a document issued by that prison, the average space per prisoner in the cells where the applicant was held varied, but was sometimes less than three square metres per inmate. 9. On 2 September 2011 the applicant complained to the Prisons’ Department (Kalėjimų departamentas), a body that oversees Lithuanian prisons, about the conditions in which he had been held (dėl buvusių prastų kalinimo sąlygų) in Lukiškės Remand Prison. In its reply of 15 September 2011, the department admitted that the applicant’s allegations that he had been held in overcrowded cells in Lukiškės had been partly proved. 10. After visiting Kaunas Remand Prison on 28 November 2011, the Public Health Centre (Visuomenės sveikatos centras) found that the prison complied with general health and hygiene requirements. 11. On 5 August 2013 the applicant started court proceedings for damages, arguing that the conditions of his detention in Lukiškės Remand Prison had been abysmal. 12. By a decision of 19 November 2013, the Vilnius Regional Administrative Court held that the applicant had missed the three years’ statutory deadline to lodge a claim for damages, because he had been released from Lukiškės Remand Prison on 14 June 2010. 13. The applicant appealed, arguing that he had only learned in July 2012 that his rights had been breached, when he had started communicating with his current representative before the Court, Mr S. Tomas. 14. By a final decision of 30 October 2014, the Supreme Administrative Court dismissed the appeal, noting that the applicant could have asked for legal aid to start court proceedings for damages in a timely fashion if he had been without sufficient means to employ a lawyer. 15. On 22 September 2011, while he was being held at Kaunas Remand Prison, the applicant had his first myocardial infarction. He was taken that day to a public hospital – the cardiology unit of the Hospital of the Lithuanian University of Health Sciences’ Kaunas Clinics (Lietuvos sveikatos mokslų universiteto ligoninė – Kauno klinikos, hereinafter – “the Kaunas Clinics”), where he underwent a surgical intervention. The doctors noted in the applicant’s medical file that he was a heart attack risk because he had smoked 10-15 cigarettes a day for twenty-five years. Another risk factor was hereditary, because the applicant’s father had had myocardial infarction. 16. On 28 October 2011 the Kaunas Clinics’ doctors concluded that the applicant’s condition had stabilised (būklė stabilizavosi). The applicant was prescribed medications for his condition (medikamentinis gydymas), explained what kind of diet and health regime to follow and transferred to the Prison Department Hospital (Laisvės atėmimo vietų ligoninė). 17. As can be seen in the documents submitted by the parties, and as was later confirmed by the Ombudsperson (see paragraph 30 below), the doctors at the Prison Department Hospital, on the instructions of the doctors at the Kaunas Clinics, performed a number of tests on the applicant (including urine, blood, and an ECG). They also prescribed a diet that was low on salt and fat. Given that the applicant’s state of health was stable and improving, on 3 November 2011 the applicant was sent back to Kaunas Remand Prison. The doctors recommended that he continue to take the medications he had been prescribed. 18. On 6 December 2011 the applicant was again placed in the Prison Department Hospital for an earlier scheduled consultation. He had some diagnostic tests and was treated with medications. 19. On 14 December 2011, while at the Prison Department Hospital, the applicant had a second myocardial infarction and was immediately transferred to a public hospital – the Cardiology and Angiology Centre of Vilnius University Hospital’s Santariškės Clinics (Vilniaus Universiteto Ligoninės Santariškių klinikos, hereinafter – “the Santariškės Clinics”), where he was examined and tests were performed. Two days later, on 16 December 2011, the doctors in Santariškės held that the applicant’s state of health was stable, and on that day he was returned to the Prison Department Hospital. 20. While being held at the Prison Department Hospital, on 6 March 2012 the applicant was taken back to the Santariškės Clinics for a consultation. The doctors recommended the applicant be treated with medications and also prescribed a diet which was low on salt and fat. The doctors also recommended that the applicant engage in physical activity for 45 to 50 minutes a day. They also recommended that the applicant be “brought back to the Santariškės Clinics’ Cardiology and Angiology Centre after six months (po 6 mėnesių) for a consultation, having registered in advance”. 21. On 15 March 2012 the Prison Department Hospital released the applicant back to Kaunas Remand Prison. The applicant’s medical record indicates that he was released because his state of health “had improved (pagerėjo)”. It also states that the applicant “could walk (gali eiti)”. Among the risk factors, the doctors noted that the applicant smoked. It was recommended that the applicant have further outpatient treatment with medications (medikamentinis ambulatorinis gydymas), follow a diet that was low on fat and salt and be physically active by taking exercise (fizinis aktyvumas). 22. On 31 December 2011 the applicant was issued with a certificate that he had lost 60% of his capacity for work. The document stated that he could not perform any work where he needed to lift more than 15 kilograms. However, the applicant could do work that involved walking, sitting or bending. 23. In reply to a complaint by the applicant’s lawyer, on 14 May 2012 the Prison Department Hospital noted that it had rigorously adhered to the instructions from cardiologists of category III medical care institutions (see paragraph 65 below). 24. The applicant was again admitted to the Prison Department Hospital, staying there from 27 to 29 March 2012 with digestion-related issues (haemorrhoids). The doctors noted that the applicant had got haemorrhoids three years previously. After examining the applicant, they prescribed outpatient treatment with medications, and noted that he was fit enough to be taken to a court hearing. 25. In April 2012 the Kaunas Remand Prison’s administration told the applicant in reply to a request that as of that month he would be provided the same menu of food as women (Jums bus tiekiamas maitinimas pagal moterų valgiaraštį). 26. After visiting the Prison Department Hospital between 7-22 May 2012, the Public Health Centre concluded that the hospital complied with general health-care and hygiene requirements. 27. The applicant was admitted to the Prison Department Hospital from 21 to 28 June 2012 for a scheduled follow-up (planine tvarka) of his heart condition. The applicant’s medical record shows that a number of tests had been performed on him, the doctors concluded that his state of health was “unchanged (be pakitimų)” and “satisfactory (patenkinama)”. The medical certificate issued at the time of the applicant’s discharge from the hospital on 28 June 2012 also indicated that he smoked, which was a risk factor. 28. In March 2012 the applicant also wrote to the Ombudsperson, complaining that he had been held at Lukiškės Remand Prison, Kaunas Remand Prison and at the Prison Department Hospital, where he had suffered great psychological stress. He argued that in those facilities his health had worsened and as a consequence he had suffered two myocardial infarctions. He also claimed that in Kaunas Remand Prison he had not been provided with the right diet, going against the doctors’ recommendations. The applicant was also dissatisfied with the fact that he had not been provided rehabilitation therapy. In April 2012 the applicant withdrew, in writing, the part of his complaint concerning Kaunas Remand Prison, stating that he had no complaints about that facility. 29. On 6 June 2012 the Ombudsperson accepted the applicant’s withdrawal of his complaint as regards Kaunas Remand Prison. The Ombudsperson, however, established that the conditions of the applicant’s detention at Lukiškės Remand Prison, where he had been held between March 2009 and June 2010, as well as at the Prison Department Hospital, where he had been held between 16 December 2011 and 15 March 2012, had been in breach of domestic legislation on overcrowding. In particular, the applicant had been held in the Prison Department Hospital in a room where he had had 4.42 square metres of personal space. 30. The Ombudsperson nevertheless dismissed the complaint about a lack of proper medical care. After examining the documents related to the applicant’s treatment in hospitals, the Ombudsperson noted that, contrary to the applicant’s submissions, neither the Kaunas Clinics nor the Santariškės Clinics had prescribed him a course of rehabilitation therapy after the applicant’s first and second heart attacks respectively. On the contrary, both Clinics had made recommendations for further treatment, such as the medications, tests and dietary requirements which were required, and which the Prison Department Hospital had followed. 31. According to three documents provided by the applicant’s representative, Mr. S. Tomas, in September and December 2012 and in April 2013 the outpatient polyclinic in Upninkai (Upninkų ambulatorija, hereinafter – Upninkai Polyclinic), a village in Jonava district in Lithuania, gave “the applicant’s authorised person” three written statements by the polyclinic’s head doctor. They noted that the applicant had suffered from myocardial infarction and summarised his medical history. One of those documents also stated that because of his state of health, as seen in the light of certain legal acts issued by the Minister of Health, the applicant should be released from serving his sentence. 32. In November 2012 the applicant was taken to the Prison Department Hospital for a planned consultation with a cardiologist. The applicant spent about a month there. During that time, on 15 November 2012, he was also taken to the Santariškės Clinics, where the doctors performed a cardiopulmonary exercise test (veloergometrija) and an ultrasound examination of the heart (ultragarsinis širdies tyrimas). The applicant’s heart was rhythmical, with no decompensation. The cardiologists prescribed medications to treat the applicant, said he should limit his intake of fat and salt (as concerned his diet) and have 45-50 minutes of physical activity a day. He was to return for a further consultation, although the exact date was not indicated. The doctors in the Prison Department Hospital also performed a number of tests. When they released the applicant back to Kaunas Remand Prison on 5 December 2012 they concluded that “his illness was without complications (ligos eiga: be komplikacijų)”. The applicant’s state of health was “satisfactory (patenkinama)”. 33. As can be seen from the applicant’s medical records, on 12 February 2013 Kaunas Remand Prison sent him to the Prison Department Hospital for “a full examination, follow-up and treatment” of his heart condition. The doctor’s examined the applicant, including an ECG and blood tests, and concluded that his state of health was “satisfactory”. It was noted that the applicant smoked. 34. After the applicant’s arrest on 25 March 2009, a court sanctioned his pre-trial detention for an initial duration of three months. The detention was then prolonged a number of times. 35. On 28 November 2011 the Kaunas Regional Court extended the applicant’s pre-trial detention for three months on the grounds that the applicant was suspected of being the organiser of a criminal group which committed drug-related crimes, that he had connections abroad, did not work and faced a heavy sentence. Moreover, there was evidence in the file that the applicant had attempted to influence other suspects, thus impeding the criminal investigation. 36. The applicant’s lawyer appealed, arguing that her client had suffered a double myocardial infarction, had been operated on and treated at the Prison Department Hospital. In addition, he had another illness, connected to the digestive system. The lawyer argued that her client would not receive proper medical assistance, as regarded his regime and diet, in the Prison Department Hospital. She asked that a milder remand measure than pre-trial detention be ordered. 37. On 29 December 2011 the Court of Appeal dismissed the appeal, finding that milder remand measures would hinder the course of justice. It held that there was no information in the file preventing the holding of the applicant in pre-trial detention because of his state of health. The court noted that the applicant was being held at the time at the Prison Department Hospital and was receiving 24-hour medical assistance. 38. In March 2012 the applicant’s lawyer submitted several new requests asking to replace detention with a less severe remand measure owing to the deterioration of the applicant’s health while in detention. She also relied on the Santariškės Clinics’ record of 6 March 2012, where it was stated that the applicant needed a low-salt diet, a special regime for his meals and physical activity. The lawyer maintained that such assistance could not be provided at Kaunas Remand Prison or at the Prison Department Hospital, thus preventing the applicant from having satisfactory medical care. 39. On the basis of the request by the applicant’s lawyer, on 23 March 2012 the Kaunas Regional Court ordered a comprehensive forensic examination to be performed by a doctors’ commission, comprising a cardiologist, to answer the question whether the applicant was ill with a serious, incurable illness (sunki nepagydoma liga), and, if so, whether for that reason he could be released from serving a sentence. In the meantime, the court extended the applicant’s pre-trial detention. 40. On 20 April 2012 the Court of Appeal upheld the decision to extend the applicant’s detention. The court observed that although the applicant had serious health problems, he had always been provided with adequate treatment at the Prison Department Hospital or, if necessary, in a public hospital. 41. After examining the applicant’s medical records from the Kaunas Clinics and the Santariškės Clinics, as well as from the Prison Department Hospital, on 11 June 2012 experts from the State Forensic Medicine Service (Valstybinė teismo medicinos tarnyba) produced report no. EKG 24/12 (02). It read that the applicant had an ischaemic heart illness, having suffered a myocardial infarction; he also had hypertension and ischaemic cardiomyopathy. Those ailments should be classified as serious and incurable illnesses. However, the experts concluded that the applicant’s state of health at the time did not meet the criteria which allowed a convicted person to be exempted from serving a sentence, according to the rules set by the Ministry of Health and the Ministry of the Interior (see paragraph 49 below). One of the doctors on the commission was a cardiologist, a professor and habilitated doctor of sciences at the Kaunas Clinics. Another doctor was a surgeon with 35 years of experience. 42. The applicant’s pre-trial detention was then prolonged by court rulings on 13 June, 24 July and 25 September 2012. 43. The last pre-trial detention order was upheld on 19 October 2012 by the Court of Appeal. The applicant’s lawyer referred to the reports from the Upninkai Polyclinic and claimed that neither Kaunas Remand Prison nor the Prison Department Hospital could guarantee the necessary medical care for the applicant. The Court of Appeal however noted absence of any new documents showing that the applicant’s state of health had worsened. The Court of Appeal also had regard to the practice of the Court to the effect that the State should protect inmates’ physical health (it relied on Kudła v. Poland [GC], no. 30210/96, ECHR 2000XI, and Peers v. Greece, no. 28524/95, ECHR 2001III). However, in the applicant’s case there was no evidence that there would be a lack of medical assistance. Furthermore, the comprehensive medical examination (see paragraph 41 above) had not ruled out keeping the applicant detained, and, in the court’s view, its conclusions prevailed over those of the Upninkai Polyclinic. There was no reason to hold that keeping the applicant detained, and, if necessary, treating him at the Prison Department Hospital or in another hospital, could be considered as inhuman or degrading. 44. By a judgment of 13 December 2012, the Kaunas Regional Court found the applicant guilty of a number of drug-related crimes and sentenced him to sixteen years and six months imprisonment in a correctional home. The applicant was to remain detained until the judgment became final. 45. The applicant’s conviction was upheld by the Court of Appeal on 31 March 2014, but the sentence was changed to fourteen years of deprivation of liberty in a correctional home. 46. By a final judgment of 16 December 2014, the Supreme Court upheld the appellate court’s verdict. The Supreme Court also relied on expert report no. EKG 24/12 (02) (see paragraph 41 above), and held that the lower courts had been correct in finding that the applicant’s state of health did not prevent him from serving a prison sentence.