ANTONOVS v. LATVIA
Inadmissible
George Nicolaou;Ineta Ziemele;Krzysztof Wojtyczek;Nona Tsotsoria;Päivi Hirvelä;Zdravka Kalaydjieva
1. The applicant, Mr Eduards Antonovs, is a Latvian national, who was born in 1972 and is currently serving a prison sentence in Jelgava. The applicant, who had been granted legal aid, was represented before the Court by Ms J. Averinska, a lawyer practising in Riga. 2. The Latvian Government (“the Government”) were represented by their Agent at the time, Mrs I. Reine , and subsequently by Mrs K. Līce. 3. The facts of the case, as submitted by the parties, may be summarised as follows. 4. On 2 April 2003 the applicant was arrested on suspicion of murder. 5. On 20 October 2004 the Riga Regional Court (Rīgas Apgabaltiesa) convicted the applicant of murder and burglary and sentenced him to fourteen years’ imprisonment. 6. On 7 April 2005 the Criminal Cases Chamber of the Supreme Court (Augstākās tiesas Krimināllietu tiesu palāta) upheld the judgment of the first-instance court. 7. The applicant lodged an appeal on points of law. He noted that the appellate court had not considered his complaint that his health was deteriorating. The applicant argued that he had contracted an incurable disease in detention, that he could not abide by prison rules because of the deteriorating state of his health, and that he was not receiving the medication he needed. Referring to section 59 (6) of the Criminal Law, he asked for his sentence to be reduced. 8. On 19 May 2005 the Criminal Cases Division of the Senate of the Supreme Court (Augstākās Tiesas Senāta Krimināllietu departaments) in a preparatory meeting rejected the applicant’s appeal on points of law. The Senate noted that it did not have competence to release the applicant from serving his sentence. It referred to section 59 (6) of the Criminal Law and section 364 of the former Code of Criminal Procedure. 9. On 4 April 2003 the applicant was transferred to Riga Central Prison (Rīgas centrālcietums). 10. On 7 April 2003 the applicant underwent a medical examination; a note was made that he smoked and drank alcohol, but did not use narcotics; he also had several tattoos. He was prescribed fluorography, and no pathology was found. A blood test (for HIV and syphilis) was carried out; its results were negative. He was found to be “practically healthy”. 11. On 22 May 2003 the applicant complained to a prison doctor of a cough, cold symptoms and sweating; he was diagnosed with rhinopharyngitis. He was prescribed a five-day course of medication. 12. On 22 September and 2 October 2003 the applicant complained about a cough and cold symptoms. He was diagnosed with rhinopharyngitis and pharyngitis respectively on those occasions, and some medication was prescribed, a five-day course each time. 13. On 9 October 2003 the applicant was transferred to Brasa Prison (Brasas cietums). Although there is no information as to whether a medical examination was carried out when the applicant was admitted to the prison, or whether any tests were done, the applicant’s medical record contains a note made by a prison doctor on the date of admission that the applicant had no complaints, accompanied by the results of a basic health check (blood pressure readings and visual inspection). The applicant was found to be “practically healthy”. 14. On 12 December 2003 the applicant received some vitamins (one per day). 15. On 7 June 2004 the applicant’s lungs were examined; no pathology was found. 16. On 24 February 2005 the applicant complained of stomach pain: an examination was ordered, but no pathology was found. He was prescribed a seven-day course of medication. 17. On 15 March 2005 the applicant complained of skin problems. He was diagnosed with a skin disease and prescribed a ten-day course of medication. At the same time the applicant requested a blood test for the hepatitis C virus (HCV) at his own expense. 18. On 22 March 2005 the test detected the presence of HCV antibodies (anti-HCV) in the applicant’s blood. 19. On 11 and 12 April 2005 the applicant complained of a cold; a prison doctor concluded that he had pharyngitis. He received a three-day and a five-day course of medication; two days later he was prescribed multivitamins. 20. On 18 May 2005 the applicant complained of stomach pain and a prison doctor concluded that he had HCV. He received a ten-day course of liver medication (Carsyl), which was extended for another ten days with another medication (Cholagol) on 8 June 2005. 21. On 16 June 2005 the applicant was transferred to Jelgava Prison (Jelgavas cietums) to serve his sentence. 22. On 17 June 2005 the applicant underwent a medical examination. The applicant was found to be “practically healthy”. A note was made that the applicant was infected with the hepatitis C virus. 23. On 20 June 2005 the applicant visited a prison doctor to request treatment for the HCV (Carsyl or Essenciale forte). His status of health was noted as satisfactory, and it was explained to him that HCV treatment could only be carried out at his own expense. 24. On 19 August 2005 the applicant received a ten-day course of liver medication (Carsyl). 25. On 5 and 23 September 2005 the applicant requested that an examination and a liver biopsy be carried out. They were refused, and on the latter date a note was made in his medical record that he had no objections to this decision. 26. On 5 October 2005 the applicant asked the head of the Jelgava Prison Medical Unit for an in-depth HCV examination and treatment. It was explained to the applicant that in accordance with domestic law (regulation no. 358, paragraph 12) these could only be provided at his own expense. The applicant disagreed, and took the view that the treatment should be paid for by the State. The applicant was prescribed tests (fibrogastroscopy, blood and urine tests) and consultations with a general practitioner and a psychiatrist. 27. On 11 November 2005 the applicant consulted a psychiatrist and was prescribed a seven-day course of medication. 28. On 21 December 2005 the applicant was prescribed a five-day course of medication for bile duct problems. 29. On 17 June 2006 the applicant was prescribed a five-day course of medication for dermatitis. 30. On 20 July 2006 the applicant was prescribed skin medication at his own expense. 31. On 13 February 2007 the applicant underwent a prophylactic check-up and a DNA sample was taken from him. 32. On 26 April 2007 the applicant complained of headache, flu, cough and fever. He was diagnosed as suffering from an upper respiratory tract infection and prescribed a four-day course of medication. 33. On 6 June 2007 another prophylactic check-up was carried out. The conclusion was that he was “practically healthy”. 34. On 28 June 2007 the applicant underwent lung screening; no pathology was found. 35. On 21 April 2008 the applicant complained of fever, headache, and a cough; he was diagnosed with an upper respiratory tract infection and prescribed a four-day course of medication. 36. On 13 September 2008 the applicant was examined by an oculist. 37. On 1 July 2009 the applicant was diagnosed as suffering from an upper respiratory tract infection and was prescribed a four-day course of medication. 38. On 3 July 2009 the applicant underwent a prophylactic check-up. The conclusion was that his state of health was satisfactory. 39. On 26 October 2009 the applicant was prescribed a five-day course of medication for tracheitis. 40. On 21 January 2010 another medical examination was carried out and tests were taken. 41. On 13 July 2005 the Latvian Infectious Diseases Centre (Latvijas Infektoloģijas centrs) replied to the applicant that they could not help if they did not have any medical documents describing the applicant’s illness. The applicant had to approach his prison doctor, who could assign, within the limits of available resources, appropriate examinations to verify any diagnosis. 42. On 9 August 2005 the applicant submitted a complaint to the Minister of Justice, with a copy to the Minister of Health and the Prisons Administration. He stated that he had never used narcotics in his life but that soon after imprisonment he had been “infected with hepatitis C”. He requested that the State re-establish a programme for detecting and treating infectious diseases and that he be allowed to use his own darning needles, slippers and scissors in prison. 43. On 18 August 2005 the Prisons Administration replied that the applicant was not allowed to have these items, pursuant to domestic law. They noted that the applicant did not have objective symptoms requiring treatment for hepatitis C at that time. A reference was made to regulation no. 358, which allowed him to purchase medication at his own expense. 44. On 19 August 2005 the Ministry of Health replied that a diagnosis of the hepatitis C virus was generally confirmed in the Latvian Infectious Diseases Centre, using a range of examinations such as blood tests to detect if the virus was in the body or if only its antibodies were present. If the virus was detected, its genotype and activity were identified. Liver puncture biopsy was further necessary to establish the range and depth of inflammation. Only when the hepatitis C virus diagnosis had been confirmed could a decision be made as regards treatment. From 1 January 2005 medication was available in Latvia to effectively (but not 100%) treat chronic hepatitis C, if a patient did not have any other health problems or contraindications. With reference to regulation no. 1036, paragraph 15.2, it was explained that the Ministry of Justice was responsible for ensuring that medication was available to treat patients with chronic hepatitis C in prisons, therefore the applicant was advised to enquire about it there. At the same time, the Ministry of Health advised that a prison doctor was responsible for assessing convicted persons’ state of health, for providing medical care in accordance with the established diagnosis, and for prescribing medicine within the allocated budgetary resources. If an in-depth examination and special treatment was necessary, a specialist doctor (a hepatologist) from the Latvian Infectious Diseases Centre was invited to assess the patient’s state of health and draw up a treatment plan. The applicant was advised to consult a prison doctor. 45. On 19 August 2005 the Ministry of Justice replied that, taking into account that the applicant was suffering from a serious infectious disease (hepatitis C), he could require the relevant prison authority to take the necessary prophylactic measures if there was a risk of the disease being spread. They also referred to paragraph 2 of regulation no. 358. 46. On 22 August 2005 the applicant submitted a complaint to the Jelgava Court, with a copy addressed to the prosecutor’s office and the Prisons Administration. He noted that he had never used narcotics in his life but that soon after imprisonment he had been “infected with hepatitis C”. He did not request to be released on health grounds, but rather that his state of health be fully assessed by specialists from the Latvian Infectious Diseases Centre, that his sentence be reduced, and that he be transferred to an open prison. 47. On 29 August 2005 a judge sent those complaints back to the applicant with an explanation of the procedure for release on health grounds under section 364 of the Code of Criminal Procedure. 48. On 1 September 2005 the prosecutor’s office forwarded the applicant’s complaint to the head of Jelgava Prison in connection with assessment of his health and his request for his sentence to be reduced. 49. On 9 September 2005 the Prisons Administration replied that in accordance with regulation no. 358 convicted persons received minimum standard of health care. Assistance that was not paid for from the State budget was provided at their own expense. It was noted that the applicant had received the minimum standard of health care, including hepatoprotectives. An in-depth examination was not included in the minimum standard and was not paid for by the State. In addition, as the applicant’s state of health was satisfactory there was no need for the in-depth examination. 50. On 10 October 2005, in response to another complaint by the applicant, the Prisons Administration noted that a doctor was responsible for patient examination, assessment of state of health and for providing treatment; they also repeatedly explained the minimum standard of health care in prisons and that the in-depth examination was not included in the minimum standard (regulation no. 358). This examination and any further treatment could be provided at his own expense (paragraph 12). 51. On 10 and 11 October 2005 the Ministry of Justice responded that only a doctor can establish diagnosis and choose the most adequate therapy. They reiterated that the minimum standard did not include an in-depth examination or treatment; these could be provided at his own expense in accordance with regulation no. 358 (paragraph 12). 52. On 26 November 2007 the Latvian Infectious Diseases Centre informed the applicant that they provided treatment for chronic hepatitis C, but that they were not responsible for arranging for the provision of health care in prisons. The prison doctor was responsible for the applicant’s health care. They informed the applicant about the following expenses in relation to laboratory examinations related to hepatitis C: LVL 42.75, 91.60 and 128.60 for HCV RNA, HCV viral load and HCV genotype respectively (approximately 61, 130 and 183 euros (EUR)). 53. On 23 November 2011 the Ministry of Health replied to the applicant’s enquiry about convicted persons’ health care. They relied on regulation no. 199 and explained that primary medical care was provided by prison doctors and that secondary medical assistance was available upon prescription by prison doctors. The applicant was advised to contact prison doctor. The possibility of making a complaint to the Health Inspectorate (Veselības inspekcija) if a prison doctor did not carry out his or her professional duties was explained to him. 54. Section 138 (1) of the Criminal Law (Krimināllikums) provides that in cases of inadequate performance of professional duties by a medical professional resulting in “serious” (smagi) or “moderate” (vidēja smaguma) “bodily injury” (miesas bojājumi) those professionals may be held criminally responsible. In Latvian criminal law bodily injury is defined as anatomical damage to, or functional impairment of, a person’s tissue, organs or systems caused by physical (mechanic, thermic, electric, acoustic, radiation-related, chemical, biological) or psychological effects or interference (Annex no. 3 to the Law on Entry into Force of the Criminal Law). 55. Section 138 (2) of the Criminal Law provides that in the event of inadequate performance of professional duties by a medical professional resulting in a person’s death or infection with HIV, that professional may be held criminally responsible. 56. Criminal responsibility for inadequate performance of professional duties by a medical professional resulting in infection with the hepatitis B or C viruses was established by way of amendments to section 138 (2) of the Criminal Law effective from 1 July 2009. 57. Section 133 of the Criminal Law provides criminal responsibility for wilful infection with HIV. 58. Criminal responsibility for wilful infection with the hepatitis B or C viruses was established by way of amendments to section 133 of the Criminal Law effective from 1 July 2009. 59. Finally, with effect from 1 July 2009 criminal responsibility for infection with a dangerous disease resulting in serious bodily injury or death was established (section 1331). 60. According to section 59 (6) of the Criminal Law if a convicted person has fallen ill with a severe and incurable illness after the pronouncement of a judgment, a court may release that person from serving the remainder of the sentence. 61. According to section 116 of the Sentence Enforcement Code (Sodu izpildes kodekss), if a convicted person has fallen ill with a severe and incurable illness owing to which he or she is unable to serve the remainder of his or her sentence, the relevant penal institution has to order a medical examination and, on the basis of the results, make an application for release to the appropriate court. 62. The relevant part of section 640 (4) of the Criminal Procedure Law (Kriminālprocesa likums), in force since 1 October 2005, provides that a judge may release a convicted person from serving the remainder of his or her sentence if that person has fallen ill while serving their sentence, taking into account the personality of the convicted person, the nature of the offence, and other circumstances. Before the entry into force of the Criminal Procedure Law, the relevant provision was contained in section 364 of the Code of Criminal Procedure (Kriminālprocesa kodekss). 63. Section 10 of the Medical Treatment Law (Ārstniecības likums), as in force at the material time, provided that the Inspectorate of Quality Control for Medical Care and Working Capability (“the MADEKKI”) was responsible for monitoring the professional quality of medical care in health-care establishments. With legislative amendments effective from 5 October 2007 onwards that task was entrusted to the Health Inspectorate. 64. Under the relevant regulation of the Cabinet of Ministers (no. 218 (2005) entitled “Medicīniskās aprūpes un darbspējas ekspertīzes kvalitātes kontroles inspekcijas nolikums”), effective from 6 April 2005 to 9 February 2008, one of the main functions of the MADEKKI and its successor, the Health Inspectorate, was monitoring the professional quality of medical care in all health-care establishments regardless of their property type and subordination (paragraph 3.1.). Their main tasks included carrying out examinations and providing opinions about the quality of medical care in all health-care establishments, monitoring compliance with the domestic law in health-care establishments and dealing with (individual) applications concerning medical care (paragraphs 4.1., 4.4. and 4.7.). They had the right to request and receive from all health-care establishments or other persons medical documentation, information and documents necessary to carry out examinations, request and receive oral and written explanations from the person who provided medical care or who was responsible for compliance with the compulsory requirements in the institution, and examine cases of administrative offences and impose fines in accordance with the Code of Administrative Violations (paragraphs 5.1., 5.2. and 5.4.). 65. At the relevant time, under the Code of Administrative Violations the MADEKKI or subsequently the Health Inspectorate could impose a fine up to 100 Latvian lati (LVL) (approximately EUR 142) for breaches of the relevant medical care regulations, and up to LVL 250 (approximately EUR 355) for a repeat offence. With effect from 21 July 2010 this fine was increased to LVL 250 (approximately EUR 355) and LVL 500 (approximately EUR 710). 66. In accordance with Annex No. 3 to regulation of the Cabinet of Ministers no. 1036 (2004), effective from 1 April 2005 until 1 January 2007, the following outpatient laboratory tests were carried out free of charge, if prescribed by a general practitioner: - anti-HCV test to establish the presence of antibody in blood serum; - anti-HCV (WB – Western Blot) to confirm the presence of antibody in blood serum; - HCV RNA (nucleic acid) (PCR – polymerase chain reaction) test to determine the presence of the virus itself in blood serum; - anti-HCV IgM (immunoglobulin M). 67. In accordance with paragraph 15.2. of this regulation, the Ministry of Justice was responsible for covering costs for medical care in prisons, apart from medical treatment for those suffering from tuberculosis and HIV/AIDS, which expenses were covered from the State budget. 68. In accordance with Annex No. 6 to regulation of the Cabinet of Ministers no. 1046 (2006), effective from 1 January 2007, the same outpatient laboratory tests were available free of charge as under regulation no. 1036 (2004) at least until 16 May 2009, when amendments as regards the laboratory tests for hepatitis C were made. 69. Regulation of the Cabinet of Ministers no. 358 (1999), in force at the material time and effective until 28 March 2007, provided as follows: “2. Convicted persons shall receive the minimum standard of health care free of charge up to the amount established by the Cabinet of Ministers. In addition, the Prisons Administration, within its budgetary means, shall provide convicted persons with: 2.1. primary, secondary and tertiary (in part) medical care; 2.2. emergency dental care; 2.3. medical examinations/check-ups; 2.4. preventive and anti-epidemic measures; 2.5. medication and injections prescribed by a (prison) doctor; and 2.6. medical equipment. 3. Detainees shall receive medical care in accordance with paragraph 2 of this regulation, excluding planned inpatient treatment ... Detainees shall be sent to receive inpatient treatment only in acute circumstances... 12. The prison authorities may agree with [a civilian hospital or medical centre] that the latter is to provide consultation and treatment at convicted persons’ ... own expense if they so wish.” 70. Regulation of the Cabinet of Ministers no. 199 (2007), effective from 28 March 2007, provides as follows: “2. [Convicted persons and detainees] shall receive free of charge in prison: 2.1. primary medical care, but not scheduled/planned dental care, 2.2. emergency dental care, 2.3. secondary medical assistance in emergency situations, as well as secondary medical assistance which is provided by prison doctors within their field of expertise, 2.4. the most effective and affordable medicine, prescribed by prison medical practitioners ... 15. Upon application by a [convicted person or detainee], and with the approval of a prison doctor, the prison authorities may agree with [a civilian hospital or medical centre] that the latter is to provide consultations and treatment outside prison territory. Such consultations and treatment are to be paid for by the [convicted person or detainee], including transport and security-related expenses.” 71. On 19 November 2009 the Administrative District Court (Administratīvā rajona tiesa) (in case no. A42398506) adopted a judgment concerning a MADEKKI decision, whereby no shortcomings had been found in medical care as regards the treatment of hepatitis C in a prison. The claimant in that case, by instituting the administrative proceedings, had insisted that he had to be tested for hepatitis C virus (and not only its antibodies, anti-HCV) and that he should receive treatment. The claimant sought the quashing of the 31 October 2005 decision and compensation for distress in the amount of LVL 15,000 as well as compensation for pecuniary loss in the amount of LVL 12,884 (LVL 352 for the costs of laboratory examinations and LVL 12,532 for the costs of treatment) and for physical damage in the amount of LVL 8,000. 72. The court found that the MADEKKI decision (the assessment of the quality of medical care) had constituted “unlawful action by a public authority”, but did not award any compensation. This judgment took effect on 10 December 2009. 73. The court established the following facts: “[8.1] In response to the claimant’s application, on 15 March 2005 [the Latvian Infectious Diseases Centre, hereinafter – the LIC] stated that prison doctors were responsible for providing medical care in prisons, that claimant was obliged to consult them, and that the LIC did not have documents attesting that the claimant was suffering from a chronic condition [hepatitis C virus, hereinafter – HCV]... [8.3] On 19 August 2005 [the claimant was informed that] the Medical Unit of Matīsa Prison and the LIC specialists did not have confirmed data that the claimant was suffering from chronic HCV, but that they had data indicating that the claimant had been in contact with HCV. Tests for HCV to confirm or exclude [the diagnosis] of chronic HCV [did] not correspond to the notion of “acute circumstances” laid down in paragraphs 2 and 3 of regulation no. 358. [8.4] The claimant lodged an application with [the MADEKKI] complaining about the refusal to treat him for HCV in Matīsa Prison and asking for an assessment of the quality of medical care provided to him ... [8.7] On 10 October 2005 the [MADEKKI] drew up a report [in case no.7-25-K-771] about the claimant’s medical care in prison. The report’s conclusions indicate that on 21 December 2000 the LIC laboratory established that a positive result for HCV antibodies (anti-HCV) test in the claimant’s body had been established and that he had HIV infection in stage “C” (Aids); it was also noted that he regularly received antiretroviral therapy for the latter. [8.8] [On 12 October 2005] administrative offence proceedings in case no.7-25-K-771 were terminated ... [8.10] Disagreeing with this decision, the claimant lodged a complaint against it with the head of [the MADEKKI]. By a decision [of 31 October 2005, no.7-25-K-1027/8573], the decision to terminate administrative offence proceedings was left to stand and his complaint was dismissed. [8.11] On 21 December 2005 the Ministry of Justice ... in response to the claimant’s request for LVL 12,884 to be allocated from the budget for his HCV treatment, noted that there were no resources in its budget that could be allocated to treat him ... [8.13] On 1 February 2006 the Ministry of Justice [in response to a repeated request] explained that HCV treatment with antivirus medication was prescribed after an in-depth examination and that specific therapy ... was assigned only according to medical indications. In order to ensure State-guaranteed medical care pursuant to regulation no. 358 for persons in prisons taking into account their needs, these issues have been included in the Green Paper on Medical Care for Prisoners. [8.14] On 13 June 2006 the claimant lodged a claim with the Riga City Central District Court against the Ministry of Justice seeking compensation for pecuniary loss in the amount of LVL 12,884 (LVL 352 for the costs of laboratory examinations and LVL 12,532 for the costs of treatment) and for physical damage in the amount of LVL 17,000. These civil proceedings ... were terminated with a judgment of 26 March 2008, whereby his claim was dismissed.” 74. As regards the claimant’s request for the MADEKKI decision to be quashed and for compensation for distress, the court made the following findings: “[9.1] ... The claimant’s subjective right to request [the MADEKKI’s assessment of quality of medical care provided in prisons] is established under section 22 of the Medical Treatment Law... [9.2] As established by the Administrative Cases Division of the Senate of the Supreme Court in its judgment of 16 October 2008 ... in case SKA-411/2008 (hereinafter – the Senate’s judgment), the law does not specify the purpose of the [MADEKKI] assessment [of the quality of medical care]. In examining [the provisions of the Medical Treatment Law] in their entirety, the Senate considers that it has several purposes – to improve the quality of medical care, a patient can use [a MADEKKI] assessment as one piece of evidence in another set of proceedings concerning medical care, and it gives a person the opportunity to ascertain the quality [of medical care] provided by a given medical institution or doctor when a choice is being made. [A MADEKKI] assessment of the quality of medical care is not binding on anyone, but as a person has a right to receive [such an assessment], it constitutes an action of a public authority. The [MADEKKI’s] obligation to carry out the assessment pursuant to section 22 of the Medical Treatment Law was set out in regulation no.218 (no longer effective from 9 February 2008), paragraph 4.1. which at the [relevant] time provided that one of [the MADEKKI’s] tasks in carrying out its functions [was] to carry out examinations and provide opinions about the quality of medical care ... in [all] health-care establishments ... [9.3] In accordance with order no. 432 of the Cabinet of Ministers of 11 July 2007 ... [the MADEKKI] was merged with the State Pharmacy Inspectorate and the State Sanitary Inspectorate, and ... the Health Inspectorate was established. Pursuant to section 10 of the Medical Treatment Law, as currently effective, the Health Inspectorate is responsible for monitoring of the professional quality of medical care ... in health-care establishments. Accordingly, at present the monitoring of the quality of medical care provided to the claimant comes within the competence of the Health Inspectorate. Taking into account that the assessment of the quality of the claimant’s medical care within these administrative offence proceedings as expressed in [the MADEKKI] report constitutes an action of a public authority, the court, pursuant to section 250 (3) of the Administrative Procedure Law, has to determine whether the action of a public authority complies with procedural and formal criteria and whether it corresponds to provisions of substantive law. [9.4] According to the facts of the case, by lodging the request for an assessment of the quality of his medical care the claimant insisted that he be immediately tested for possible infection with HCV and that he be treated... It can be established from the letters sent by the LIC that its doctors, following regular examinations of the claimant’s state of health in connection with his HIV infection, have established the necessary treatment plan – antiretroviral therapy with efavirenz, zidovudine and lamivudine..., and have regularly informed the head of the Medical Unit of the Prisons Administration about it; however, they have left the claimant’s infection with HCV unattended to and have not taken measures in accordance with the Epidemiological Safety Law – they have not arranged for the necessary laboratory examinations with a view to arriving at an HCV-related diagnosis and treatment. The claimant contends that the prison where he is being held is under an obligation to provide an in-depth examination of his state of health in connection with HCV. At the hearing, a specialist doctor of the [Health] Inspectorate explained that any assignment to undergo a particular examination was issued only in circumstances where there are recommendations for such an examination to be carried out. If a doctor considers that a person’s request for examination is unsubstantiated, he or she may have such an examination at his or her own expense. This procedure applies to all people, with no exceptions. The court considers this view unfounded, as health-care practitioners’ obligation to provide immediate diagnosis and treatment for a person who is infected with HCV arises from provisions of the Epidemiological Safety Law. As regards convicted persons, according to paragraph 2 of regulation no. 358 they receive the minimum standard of health care free of charge ... and also, within budgetary means ... preventive and anti-epidemic measures... It appears from [the case material] that measures envisaged in section 14 (1) (1) of the Epidemiological Safety Law were not carried out in respect of the claimant until 23 August 2005. Pursuant to section 37(1) of the Medical Treatment Law a doctor, within the scope of his/her professional activities, performs illness prophylaxis, diagnosis, treatment and rehabilitation of patients; evaluates illnesses and the functional restrictions to the body caused thereby in terms of activity and participation; and examines the cause of illnesses and the prophylactic possibilities. Taking into account the aforementioned, the court finds that in the present circumstances the conclusions of [the MADEKKI] that no violations had been detected in the patient’s medical care, that the patient had been appropriately examined in response to his complaints, diagnosed and received medical care in accordance with regulation no.358 were unjustified, since in connection with his HCV infection the necessary laboratory tests with a view to specifying diagnosis had not been set up and no treatment had been prescribed. [9.5] ... The court concludes that up to 30 June 2006 the patient did not receive compensation for expenses in relation to treatment of diseases triggered by HCV infection ...” 75. As regards specifically the claimant’s request for compensation for distress, the court left it without examination, as he had not requested it in the pre-trial proceedings. The court made the following findings: “[10] It appears from the complaint [to the head of the MADEKKI] that the claimant did not request compensation for distress ... In accordance with section 278 (1) of the Administrative Procedure Law the court leaves an application without examination (atstāj pieteikumu bez izskatīšanas) if the claimant has not complied with preliminary extrajudicial examination procedures prescribed by law. Pursuant to section 281[of the same Law], if an application is left without examination, the claimant may submit the application to the court anew in compliance with the procedure prescribed by law.” 76. As regards the claimant’s request for compensation for pecuniary loss and physical damage, the court considered that these claims had already been decided in the civil proceedings before the Riga City Central District Court and dismissed. It accordingly terminated administrative proceedings in this respect, as they had the same subject matter and were based on the same facts as had already been examined by another court. 77. The same claimant, after having properly exhausted pre-trial proceedings, instituted another set of administrative proceedings (no. A420416111) requesting compensation for distress caused by an “unlawful action of a public authority”. On 28 February 2013 the Administrative District Court granted that claim in part and imposed an obligation on the Heath Inspectorate (the successor to MADEKKI) to issue a written apology to the claimant. This judgment took effect on 29 March 2013. 78. As regards compensation for distress in the amount of LVL 15,000, the court made the following findings: “[11] Pursuant to section 92 of the Administrative Procedure Law everyone has the right to receive appropriate compensation for pecuniary loss (mantiskais zaudējums) and personal harm (personiskais kaitējums), including distress (morālais kaitējums), caused by an administrative act or action of a public authority. According to section 94 (2) of the same Law, the relevant public authority may comply with the obligation to compensate (atlīdzināšanas pienākums) by restoring the situation which existed before the damage was caused, or if it is not fully or partly possible or adequate, by paying appropriate monetary compensation (atlīdzinājums naudā). According to section 9 of the Law on Compensation for Damage Caused by State Institutions (hereinafter – the Law on Compensation for Damages), distress within the meaning of this Law is personal harm in the form of human suffering that has been caused by a significant [and] unlawful interference (būtisks, prettiesisks aizskārums) with rights or legal interests of an individual. Section 14 (1) of the Law on Compensation for Damages provides that personal harm and distress is determined in proportion to the significance of rights or legal interests interfered with and the severity of the specific interference, taking into account the legal and factual grounds and the reasons for the institution’s action, the victim’s actions and share of the responsibility, as well as other significant circumstances of the particular case. According to section 14 (3), monetary compensation for distress is determined in proportion to the severity of the interference. Section 14 (4) provides that an institution may issue a written or public authority, as independent or supplementary redress [for damage], in circumstances where interference is not severe. It follows from the above-mentioned legal provisions that the ground for compensation for distress is not [interference] but rather significant [and] unlawful interference with rights or legal interests. In turn, if such [interference] has been established, compensation is determined in proportion to the severity of the harm engendered. Harm may be redressed by restoring the situation, issuing an apology or granting monetary compensation. Therefore, compensation for distress, its type and amount are determined by the significance of the interference and the severity of the harm engendered. Accordingly, if significant interference has occurred but no severe harm has been done, all types of the above-mentioned redress may generally [be afforded]. Hence also in such circumstances in determining appropriate compensation it is necessary [that] harm and compensation be proportionate.” 79. The court then went on to consider that the “unlawful action of a public authority” (the MADEKKI decision) did not constitute significant interference with the claimant’s rights and legal interests that would have had any influence on his right to receive medical care in prison and would have called for monetary compensation, in addition to any harm to life or serious harm to health. The court’s reasoning was as follows: “[14]... The court considers that action of a public authority – the MADEKKI decision in the present case, where it assessed the quality of medical care, does not trigger any legal or factual consequences for the claimant... The Senate has on several occasions pointed out that a MADEKKI assessment [of the quality of medical care] is only one of the possible pieces of evidence in a particular case, for example as concerns proceedings for compensation for damage to health. However, a MADEKKI assessment plays neither a decisive nor a determining role in deciding other matters (see the Senate’s decisions of 25 January 2005 in case SKA-76/2005 and the Senate’s judgment of 22 November 2005 in case SKA-378/2005). Therefore, the fact in itself that the MADEKKI has not found any shortcomings in the medical care provided in a prison cannot stand in the way of a decision on a question, for example, relating to the scope of medical care in prison or its availability. The court cannot establish, either from the case material or from the claimant’s statements (answers to the court’s questions during the hearing) ... that the claimant contested an action of a public authority (the particular prison) of not providing him with medical care as required by law ... [15] ... In determining the type and amount of compensation for distress, the court finds that the institution’s action of issuing the 10 October 2005 report and giving its assessment about treatment in prison could not harm the claimant’s life or seriously harm his health ... The MADEKKI report – the assessment of the quality of medical care – did not directly harm the claimant’s health to the extent that the court should have set monetary compensation up to LVL 20,000 pursuant to section 14 (1) of the Law on Compensation for Damages ... However, in determining whether distress has been caused to the claimant by [the fact] that the institution in its report did not provide a full assessment of the quality of medical care, as it has been found ... in the 19 November 2009 judgment, and taking into account the legal characteristics of the report, the court considers that pursuant to section 14 (4) of the Law on Compensation for Damages written apology may be considered independent redress.”