The ECHR judgment of 28 November 2017 in the case of Dorneanu v. Romania (application No. 55089/13).
In 2013, the applicant was assisted in preparing the application. Subsequently, the application was communicated to Romania.
The case was successfully considered a complaint about the inhuman conditions of detention of a person suffering from cancer, to repeated transfers from one institution to another, to improper care and assistance, to long-term imprisonment, despite an incurable disease. There has been a violation of Article 3 of the Convention for the Protection of Human Rights and Fundamental Freedoms.
CIRCUMSTANCES OF THE CASE
The applicant, who was prosecuted in 2002, was convicted in February 2013 and sentenced to three years and four months in prison. Although in November 2012 he was diagnosed with prostate cancer, he was imprisoned in March 2013 to serve his sentence. The applicant immediately applied for suspension of the sentence and repeated it several times. In June 2013, the court granted his application for a period of three months, but in August 2013 the Court of Appeal decided that the medical assistance necessary to the applicant could be provided in prison. To conduct treatment, the applicant was repeatedly transferred to various hospitals and prisons, often for a very significant distance. He was replaced by chemotherapy with palliative care, and he died in hospital in December 2013.
ISSUES OF LAW
Concerning compliance with Article 3 of the Convention (substantive aspect). (a) General conditions of detention. The conditions in which the applicant was held subjected him to hardships that went beyond the inevitable level of suffering inherent in detention. Although the length of his detention, when he had less than 3 square meters. meter of personal space, was short, the usual chambers (from 3 to 4 square meters) were not adapted for his severe illness, because at the end of his life he was blind and deaf and suffered from bone pain.
(b) Repeated translations. Despite the fact that most transfers were justified by medical grounds, it remains a fact that these institutions were far from each other, and in some cases hundreds of kilometers. Given the deterioration of the complainant's health, repeated translations appear to have caused and heightened his anxiety about the suitability of various insulators, the fulfillment of medical requirements for his treatment and the preservation of contact with the family. The intensity of such burdens also exceeded the inevitable level of suffering inherent in detention.
(c) Quality of care and care. At the time of his admission to prison, the applicant already suffered from a disease with a fatal short-term prognosis. Although he was treated according to the instructions of the doctors, it seems that the state authorities did not consider the possibility of implementing the treatment in one place, which would save the applicant from many transfers or at least limit the number of transfers and their detrimental impact on the patient's well-being. In addition, in the last stages of the disease, when there was no longer any hope of a remission, the stress inherent in prison life could have consequences for the life expectancy of the prisoner and the state of his health.
When the applicant was so weak physically and psychologically that he could no longer perform basic domestic activities without assistance, a cellmate was appointed to assist him. There is no evidence that a prisoner who agreed to help the applicant was qualified to assist an incurable sick person or that the applicant received adequate moral or social support or effective psychological counseling, although it was found that he was suffering from depression.
(d) Long-term imprisonment in inadequate conditions of detention. The applicant was imprisoned, despite the incurable disease and suffering from the consequences of taking strong drugs in difficult prison conditions.
In this context, any lack of diligence on the part of the authorities put the person concerned in an even more vulnerable position and made it impossible to maintain dignity, since his illness was leading to an inevitable fatal outcome. As the applicant's illness progressed, it was extremely difficult for him to carry her in prison. Thus, the authorities of the respondent State had to take special measures for humanitarian reasons.
With regard to the desirability of prolonged detention of the applicant, the Court can not substitute for its opinion the assessment of the courts of the respondent State, but nevertheless, he noted that the Court of Appeal did not give reasons for the threat that the applicant's release might represent from the point of view view of the protection of society, taking into account the state of health of the applicant. He was convicted for the first time and had already served a third of relatively mild punishment, his behavior during the trial was good, he was granted the most favorable prison regime, and given his health condition, the threat that he would continue to engage in criminal activities could only be minimal.
The Government of the respondent State did not examine the question of whether the applicant could have been practically in prison under the conditions complained of. The Court of Appeal indicated that the prescribed treatment could be provided during detention, but did not consider the conditions and practical measures for taking such potent drugs in the particular situation of the applicant, the possibility of transferring him to various prisons and hospitals, the distance between these institutions, the number of hospitals , in which he acted for the treatment, or the influence of a combination of these factors on his already highly vulnerable state. Given the exceptional nature of the circumstances of the present case, these circumstances should have been investigated, if only for humanitarian reasons, to assess whether the applicant's state of health was compatible with the conditions of his detention.
At the same time, it was not argued that it was impossible for the respondent Government to consider these exceptional circumstances, with due regard to the urgent humanitarian considerations that they entailed. On the contrary, the procedures used gave priority to formalities, thus preventing the dying applicant from spending the last days with dignity. In addition, the length of the proceedings to suspend the serving of the sentence was excessive for the terminally ill patient, and the responses of the prison administration to the applicant's requests for assistance in securing his release indicated an evasion of his situation.
Thus, the conditions of detention that the applicant had to endure with an incurable disease amounted to inhuman treatment.
The violation of the requirements of Article 3 of the Convention (unanimously) was committed in the case.
In the application of Article 41 of the Convention. The Court awarded the applicant's son EUR 9,000 in respect of non-pecuniary damage, the claim for compensation for pecuniary damage was rejected.