ALI ASAN v. ROMANIA
Inadmissible
Branko Lubarda;Johannes Silvis;Kristina Pardalos;Luis López Guerra;Mārtiņš Mits
1. The applicant, Mr Aurel Ali Asan, is a Romanian national, who was born in 1973 and has been detained in Galați Prison since June 2010. 2. The Romanian Government (“the Government”) were represented by their Agent, Ms C. Brumar, from the Romanian Ministry of Foreign Affairs. 3. The facts of the case, as submitted by the parties, may be summarised as follows. 4. The applicant has been detained since June 2010 and, following his conviction in 2011, has been serving a twenty-three years prison sentence. 5. On 28 November 2011 the applicant instituted proceedings before the Brăila County Court seeking the suspension of his prison sentence on medical grounds. 6. On an unspecified date the Brăila County Court asked the Mina Minovici Forensic Institute to produce an expert medical report in respect of the applicant’s illnesses and to clarify if he could be treated in a prison hospital. 7. On 17 June 2012 the Mina Minovici Forensic Institute produced the expert medical report ordered by the court. One of the conclusions of the report was that the applicant had bone tissue missing on the right side of his head since an operation to treat a head injury suffered in 2006. It noted that after the surgery he had been recommended to undergo an osteoplasty (surgical repair or alteration of the bone). It concluded by agreeing that an osteoplasty was recommended for the applicant’s condition. The surgery was not urgent but could be carried out only in a civilian hospital. The applicant could be transferred to a civilian hospital under permanent guard after an appointment had been made and he had consented in writing. Also, from a medical standpoint, it was not impossible for the applicant to serve out his sentence. 8. On 24 September 2012 the Brăila County Court dismissed the applicant’s action. It held that according to the conclusion of the expert medical report produced by the Mina Minovic Forensic Institute, it was not impossible for the applicant to serve out his sentence from a medical standpoint. The applicant appealed on points of law (recurs) against the judgment. 9. By a final judgment of 24 January 2013 the Galați Court of Appeal dismissed the applicant’s appeal on points of law as ill-founded. 10. On 30 January 2012 the applicant instituted proceedings before the Galați County Court seeking the suspension of his prison sentence on medical grounds. 11. On 19 March 2013 the Galați County Court dismissed the applicant’s action. It held that according to the expert medical report produced by the Mina Minovici Forensic Institute on 17 June 2012 the applicant’s illness did not make it impossible for him to serve out his sentence. The applicant appealed on points of law against the judgment. 12. By a final judgment of 26 April 2013 the Galați Court of Appeal dismissed the applicant’s appeal on points of law as ill-founded. 13. On 3 June 2013, relying on the Mina Minovici Forensic Institute’s expert report, the applicant lodged a request with the post-sentencing judge attached to Galați Prison seeking his assistance in gaining permission to undergo the surgery he needed. 14. On 4 June 2013 the post-sentencing judge attached to Galați Prison informed the applicant that his request had been forwarded to the prison’s medical office in order to be resolved. 15. On 7 June 2013, referring to the Galați Prison’s post-sentencing judge’s referral, the governor of Galați Prison informed the applicant that according to the neurosurgical evaluation report, produced in Rahova Prison Hospital for the expert medical report by the Mina Minovici Forensic Institute, the cranium cerebral trauma that had been operated on in 2006 did not need neurosurgical treatment. 16. On 29 July 2014 the post-sentencing judge attached to Galați Prison informed the Government that except for his request of 3 June 2013 the applicant had never complained before him between 2012 and 2014 under Laws nos. 275/2006 and 254/2013 that his right to medical assistance had been breached. 17. On 5 June 2012 the applicant was taken to the Bucharest University Emergency Hospital for a neurological evaluation. The evaluation report concluded that the applicant was not suffering from any serious neurological problems. However, it did recommend a neurosurgical evaluation. 18. On 22 and 29 June 2012 the applicant was taken to the Bucharest University Emergency Hospital for two neurosurgical evaluations. The evaluation reports concluded that the surgery was not urgent and that the applicant could have been operated on at any time. 19. On 12 December 2012 the applicant was taken for a CT scan which did not disclose any internal brain haemorrhage. 20. On 17 December 2012 the applicant was taken to the Carol Davila Central Military University Emergency Hospital for a neurosurgical evaluation. The evaluation report noted that the applicant’s condition was favourable and it recommended subsequent neurological evaluations with a view to an osteoplasty. 21. From 18 to 25 October 2013 the applicant was hospitalised in Rahova Prison Hospital for a neurosurgical evaluation and in order to determine the need for an osteoplasty. The evaluation report concluded that the applicant’s head injury was old and therefore was not an emergency warranting neurosurgery. 22. On 30 July 2014 the Medical Agency attached to the National Prison Service informed the Government and submitted supporting evidence attesting that from 20 September 2010 to 17 July 2014 the applicant had been repeatedly examined and treated for his medical conditions, including his head injury, in prison hospitals. Moreover, he was regularly given medical evaluations in respect of his condition. 23. On 25 June 2015 the National Prison Service informed the Government that on 19 June 2015 the applicant had been examined by a neurosurgeon at the Constanța County Hospital. The aforementioned neurosurgeon concluded that the applicant’s health was good and reiterated the chronic nature of the applicant’s condition and that it was not an emergency warranting neurosurgery. 24. The relevant provision of the former Romanian Code of Criminal Procedure concerning suspension of prison sentences (Articles 453 and 455), are described in Aharon Schwarz v. Romania, no. 28304/02, §§ 66-67, 12 January 2010. 25. Excerpts from the relevant legal provisions concerning the rights of detainees, namely Law no. 275/2006 on the execution of prison sentences, are given in the cases of Petrea v. Romania (no. 4792/03, §§ 21-23, 29 April 2008); Gagiu v. Romania (no. 63258/00, § 42, 24 February 2009); and Măciucă v. Romania (no. 25763/03, § 14, 26 May 2009). 26. The Execution of Prison Sentences Act (Article 56 of Law no. 254/2013), which entered into force on 1 February 2014, provides that a detainee can complain before the post-sentencing judge against the measures taken by the prison administration in respect of his lawful rights. The post-sentencing judge’s decision can also be challenged before the domestic courts.