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FIRST
SECTION
DECISION
Application no.
13796/09
Valentin MICHAJLOV
against Austria
The
European Court of Human Rights (First Section), sitting on 27 March
2012 as a Chamber composed of:
Nina
Vajić,
President,
Anatoly
Kovler,
Peer
Lorenzen,
Elisabeth
Steiner,
Khanlar
Hajiyev,
Mirjana
Lazarova Trajkovska,
Julia
Laffranque,
judges,
and André Wampach,
Deputy Section Registrar,
Having
regard to the above application lodged on 25 February 2009,
Having
regard to the observations submitted by the respondent Government and
the observations in reply submitted by the applicant,
Having
deliberated, decides as follows:
THE FACTS
- The
applicant, Mr Valentin Michajlov, is an Austrian national who was
born in 1952 and lives in Krems. He is represented before the Court
by Mr H. Blum, a lawyer practising in Linz. The Austrian
Government (“the Government”) are represented by their
Agent, Ambassador H. Tichy, Head of the International Law Department
at the Federal Ministry for European and International Affairs.
A. The circumstances of the case
- The
facts of the case, as submitted by the parties, may be summarised as
follows.
1. Background
- On
4 May 2005 the Vienna Regional Criminal Court (Landesgericht)
convicted the applicant of various offences under the Drugs Act and
sentenced him to eight years’ imprisonment. It found him guilty
of having commissioned various persons between May and November 2001
to import cocaine to Austria and to have sold some seven kilos of
cocaine to various individuals in Austria. In fixing the sentence,
the court had regard to the fact that the applicant had four previous
convictions two of which also concerned offences under the Drugs Act.
It also revoked the suspension of a term of three months’
imprisonment resulting from a previous conviction. The applicant’s
imprisonment was due to be terminated on 14 November 2011.
- The
applicant was detained at Sonnberg Prison when he was diagnosed with
multiple sclerosis in December 2006. Subsequently, he was regularly
taken to the public hospital in St. Pölten, which has an
out-patient department specialised in the treatment of multiple
sclerosis. Examinations took place on 11 January, 14 March and 25
September 2007 and on 23 January 2008.
- By
decision of 28 January 2008 the Korneuburg Regional Court, noting
that the applicant required more intensive medical treatment and
care, ordered his transfer to Stein Prison for the further execution
of his sentence, as that prison centre was equipped with a hospital
of its own. However, the Regional Court refused the applicant’s
request for a suspension of the execution of his sentence pursuant to
section 5 § 3 taken together with section 133 § 1 of the
Execution of Sentences Act (Strafvollzugsgesetz).
- The
Vienna Court of Appeal (Oberlandesgericht) dismissed the
applicant’s appeal on 3 March 2008. It noted on the basis of a
medical expert opinion that the applicant, suffering from multiple
sclerosis, was unfit for detention. However, he was to be considered
dangerous within the meaning of section 5 § 3 of the Execution
of Sentences Act. He had been convicted five times. His last
conviction for importing and selling seven kilos of cocaine concerned
a particularly serious crime. Although the applicant’s mobility
was reduced by his illness, he could use his contacts within the
criminal scene to commit or instigate further crimes.
2. The applicant’s placement in the hospital of
Stein prison and the medical treatment provided to him
- On
3 April 2008 the applicant was transferred to Stein prison. From that
date he was detained in the hospital of Stein prison. The Government
submitted a statement of the head doctor of the Stein prison: The
hospital has its own medical and nursing staff. Doctors carry out
daily visits and medical and nursing assistance is available 24 hours
per day. All sanitary facilities in the prison hospital are suitable
for persons with disabilities. The preparation of food takes special
needs into account.
- Until
20 January 2009 the applicant was placed in room no. 117 of the
prison hospital, which is equipped with sanitary facilities (shower
and toilet) suitable for persons with disabilities. Subsequently, he
was placed in two other rooms of the prison hospital, namely room no.
129 until 9 May 2009 and room no. 134 until his release. While
staying in these rooms the applicant could use the hospital’s
common shower room with the assistance of prison staff.
- The
applicant continued to receive treatment at the multiple sclerosis
department at the St. Pölten public hospital. An examination
scheduled for 22 April 2008 was refused by the applicant.
Further examinations took place on 27 May and 26 November 2008 and on
17 February and 18 June 2009. The applicant’s therapy was
fixed and continuously adapted by the specialists of the multiple
sclerosis department and was carried out at the prison hospital.
Moreover, the applicant was treated by the prison hospital’s
pain specialist several times.
- In
addition to medication, the applicant received physiotherapy from
2009. This was available in the prison hospital. A first set of ten
therapy units was prescribed. The applicant underwent five units
between 2 and 17 March 2009 but renounced to make use of the
remaining units. Subsequently, physiotherapy was resumed and the
applicant received eleven therapy units between 4 and 29 May 2009.
3. The applicant’s request for release of 10 June
2008
- On
10 June 2008 the applicant, represented by counsel, requested anew
that the execution of his sentence be suspended due to his illness
pursuant to section 5 § 3 taken together with section 133 §
1 of the Execution of Sentences Act and that he be released.
- He
joined an opinion by an expert on neurology and psychiatry, Dr. K.
According to the expert’s opinion dated 8 January 2008 the
applicant was unfit for detention. Since he had been diagnosed with
multiple sclerosis in December 2006 his state of health had
deteriorated considerably. In particular, the mobility of his arms
and hands was restricted and he could no longer perform simple
gestures necessary for everyday life, such as handling cutlery for
instance. His general mobility on the EDSS scale was 4 (0 being full
mobility, 7 meaning dependency on a wheel-chair). He received
medication, however this was not sufficient as according to medical
opinion a multidisciplinary approach, encompassing neurology,
physiotherapy and psychology, was necessary for treating multiple
sclerosis. The support by close relatives was also crucial.
- As
to the question whether there was still a danger that he would commit
further offences, the applicant submitted that all his energy was
devoted to combating his illness. Should the court have doubts in
respect of his dangerousness, he requested that the opinion of an
expert be taken.
- On
23 July 2008 the Krems Regional Court dismissed the applicant’s
request. It noted that according to the prison administration, the
applicant’s conduct was good. According to the prison doctor,
the applicant’s condition was stable for the time being but
could deteriorate at any time. Referring to the expert opinion, the
court acknowledged that the applicant was unfit for detention due to
his illness. However, he was to be considered particularly dangerous.
In that respect, the court referred to the decision by the Vienna
Court of Appeal of 3 March 2008, which had found that even if his
mobility was reduced there was a danger that the applicant might use
his contacts to organise further drug trafficking. Therefore the
conditions for suspending the execution of his prison term as laid
down in section 133 § 1 taken in conjunction with section 5 §
3 of the Execution of Sentences Act were not met.
- The
applicant appealed, claiming in particular that his illness had
weakened him substantially and all remaining energy was required to
cope with the illness. Consequently, it could no longer be assumed
that he would commit further offences. In that connection he
complained that the Regional Court had assumed that his dangerousness
persisted without having taken a further expert opinion.
- By
decision of 25 August 2008 the Vienna Court of Appeal dismissed the
applicant’s appeal. It noted that the applicant suffered from
multiple sclerosis and was unfit for detention. However, it confirmed
the Regional Court’s view regarding the applicant’s
dangerousness. It observed that he had been convicted five times. The
prison term he was serving related to the trafficking of a
substantial amount of drugs, namely seven kilos of cocaine which he
had imported though third persons and sold in Austria. Pursuant to
section 5 § 3 of the Execution of Sentences Act, the sentence
had to be executed even where the detainee was unfit for detention if
he presented a danger to the security of others having regard to the
nature of his offences or the motive for which they were committed or
in view of his prior conduct. The court referred to the applicant’s
recidivism and the large amount of drugs which he had sold, and found
that his dangerousness was not offset by the effects of his illness.
- In
sum, the Court of Appeal found that despite the fact that the
applicant was unfit for detention, his substitute confinement
(Ersatzhaft) – if need be in a public hospital –
was required for the protection of others.
4. The applicant’s request for release of 1 April
2009
- By
application of 1 April 2009 the applicant again requested that the
execution of his sentence be suspended pursuant to section 5 § 3
taken together with section 133 § 1 of the Execution of
Sentences Act and that he be released.
- He
submitted a private expert opinion by Dr. H, a neurologist,
psychiatrist and physiotherapist. The opinion, dated 26 March 2009,
stated that the danger that the applicant would commit further
offences had considerably decreased. While his prior convictions
indicated a certain risk, all other relevant factors rather allowed a
positive prognosis. His severe and progressive illness required all
his energy and had led to a profound change. Moreover, the
applicant’s age, his reduced mobility, the need of constant
medical treatment and his dependency on help from others made it
unlikely that he would commit further offences.
- The
Krems Regional Court appointed a psychiatric expert Dr. B. In his
opinion, dated 15 September 2009, Dr. B. noted that the applicant was
detained in the prison hospital and that according to the prison
doctor his state of health had deteriorated over the last months. By
now he was able to walk only with great difficulty. The expert
confirmed that the applicant was unfit for detention due to his
illness. Regarding his dangerousness, the expert found that the
applicant still made an astonishingly energetic impression. Although
his progressive illness and his age could be considered as a factor
reducing the probability of a relapse into crime, his personality did
not necessarily indicate that he would refrain from committing
further offences. In sum, the remaining danger had to be compensated
by stabilising factors such as assistance by a probation officer
(Bewährungshelfer).
- On
12 October 2009 the Krems Regional Court ordered the applicant’s
release. It noted that the applicant was detained in the prison
hospital. The hospital’s head doctor had submitted comments in
favour of release. Furthermore, expert Dr. B. had found that the
applicant’s inclination to commit further offences had
decreased but not totally disappeared and had recommended that a
probation officer be appointed in case of release.
- Referring
to its previous decision, the Regional Court noted that the applicant
suffered from multiple sclerosis and was unfit for detention. While
that decision had refused the applicant’s release on account of
his dangerousness, the applicant’s good conduct in the meantime
and Dr. B.’s expert opinion led to the conclusion that the
applicant’s dangerousness had decreased. On the condition that
he would reside with his mother and be assisted by a probation
officer it could be assumed that he would not commit further
offences. The execution of his sentence was therefore suspended
pursuant to section 133 § 1 of the Execution of Sentences Act.
- In
order to allow for the necessary preparations, the court ordered that
the applicant be released on 20 October 2009.
- The
applicant was released on that day.
B. Relevant domestic law
- Section
5 § 1 of the 1969 Execution of Sentences Act provides that the
execution of a prison term is to be suspended if the convict is unfit
for detention due to invalidity or a physical or mental illness.
Pursuant to section 5 § 3 of the said Act a convict who is unfit
for detention may nevertheless be deprived of his liberty if he
presents a danger to the security of the State or to the security of
third persons, having regard to the nature or the motive of the
offence committed by him, or in view of his prior conduct. If need
be, confinement is to be carried out at a public hospital.
- Pursuant
to section 133 § 1 the execution of a sentence has to be
suspended if a prisoner becomes unfit for detention while serving his
prison term. The conditions set out in section 5 apply.
COMPLAINTS
- The
applicant complained about his continued imprisonment despite the
fact that he was unfit for detention due to his illness. He claimed
in particular that in prison no adequate treatment was available.
Furthermore he pointed out that the courts had based their refusal to
release him on his alleged dangerousness without having taken
relevant evidence in that respect. He relied on Articles 3, 5 and 6
of the Convention.
THE LAW
- The
applicant, who suffers from multiple sclerosis, complained about his
continued imprisonment and the alleged lack of adequate medical
treatment. He relied on Article 3 of the Convention which provides as
follows:
“No one shall be subjected to torture or to
inhuman or degrading treatment or punishment.”
- The
Government referring to the Court’s case-law, argued that there
was no general obligation under Article 3 to release detainees on
health grounds. They explained that health care provided to prisoners
corresponded in essence to health care provided under the General
Social Security Act. Furthermore, they asserted that contrary to the
applicant’s general allegation of lack of medical care, he had
received the necessary medical treatment from the beginning. When his
state of health deteriorated he had been transferred to Stein prison
and had been placed in the prison hospital there from 3 April 2008
onwards. The treatment he received was comprehensive and in
accordance with modern standards. He had been detained in specially
equipped rooms and/or had been given the necessary assistance by the
prison hospital’s staff. In sum, no issue under Article 3
arose.
- The
applicant maintained that he was severely ill and that the medical
treatment he received in prison was inadequate and led to a
deterioration of his state of health.
- According
to the Court’s well-established case-law, ill-treatment must
attain a minimum level of severity if it is to fall within the scope
of Article 3. The assessment of this minimum level is, in the
nature of things, relative; it depends on all the circumstances of
the case, such as the duration of the treatment, its physical and
mental effects and, in some cases, the sex, age and state of health
of the victim (see Kudła v. Poland [GC], no. 30210/96,
§ 91, ECHR 2000-XI, and Peers v. Greece, no. 28524/95,
§ 67, ECHR 2001-III).
- While
Article 3 of the Convention cannot be construed as laying down a
general obligation to release detainees on health grounds, it
nonetheless imposes an obligation on the State to protect the
physical well-being of persons deprived of their liberty, for example
by providing them with the requisite medical assistance. The Court
has also emphasised the right of all prisoners to conditions of
detention which are compatible with human dignity, so as to ensure
that the manner and method of execution of the measures imposed do
not subject them to distress or hardship of an intensity exceeding
the unavoidable level of suffering inherent in detention; in
addition, besides the health of prisoners, their well-being also has
to be adequately secured, given the practical demands of imprisonment
(see Mouisel v. France, no. 67263/01, § 40,
ECHR 2002-IX; Kudła, cited above, §§ 93-94).
- The
Court notes that the applicant was diagnosed with multiple sclerosis
in December 2006. He was held in the prison hospital of Stein prison
from 3 April 2008, after the Korneuburg Regional Court had found
that he was unfit for detention on account of a deterioration of his
illness. Under Austrian law a convict who is unfit for regular
detention can be held in substitute confinement, in an adequately
equipped prison centre or, if need be, in a public hospital. In its
decision of 3 March 2008, the Vienna Court of Appeal had confirmed
the Regional Court’s assessment, namely that the applicant was
unfit for detention, but presented a danger to others due to his
convictions of drug trafficking and his contacts in the criminal
scene. It therefore ordered him to be kept in substitute confinement.
- The
Court notes that the present application, lodged on 25 February
2009 relates to the applicant’s request for release of 10 June
2008 which was dismissed by the Krems Regional Court on 23 July 2008
and by the Vienna Court of Appeal on 25 August 2008. The applicant’s
subsequent request was successful and led to his release on 20
October 2009. Throughout his entire stay at Stein prison the
applicant was held in the prison hospital.
- The
applicant’s main allegation is that he received inadequate
medical treatment. The Court has taken note of the detailed
information provided by the Government. The applicant alleged in
general terms that he received insufficient medical treatment which
led to a deterioration of his illness. However, he has not contested
the correctness of the information provided by the Government nor has
he submitted any arguments or evidence to support his allegation of
insufficient treatment. The Court will therefore base its assessment
on the information provided by the Government. It follows from that
information that the hospital at Stein prison disposed of medical and
nursing staff carrying out daily visits and being available to
provide medical and nursing assistance around the clock. Moreover,
the applicant was regularly taken for examinations at St. Pölten
public hospital, which has an out-patient department specialised in
the treatment of multiple sclerosis. His treatment was determined and
adapted when necessary, by the specialists at that hospital and was
then administered at the prison hospital. In addition to medication,
physiotherapy and pain therapy were available to him at the prison
hospital. In these circumstances, the Court sees no reason to find
that the health care and medical treatment provided to the applicant
were insufficient.
- Turning
to the prison conditions the Court notes that at the prison hospital
the applicant was kept in a room specially equipped for persons with
disabilities from 3 April 2008 until 20 January 2009. From that date
he was kept in two other rooms of the prison hospital where he could
use the common showers of the prison hospital with the help of the
staff. The applicant has not contested the information provided by
the Government. In sum, there is no indication that the prison
conditions had failed to take account of the applicant’s
reduced mobility or otherwise amounted to inhuman or degrading
treatment.
- Having
regard to all the circumstances established above, the Court does not
find that the applicant’s detention in the prison hospital
until his release on 20 October 2009 amounted to treatment contrary
to Article 3 of the Convention.
- It
follows that this complaint is manifestly ill-founded and must be
rejected in accordance with Article 35 §§ 3 (a) and 4 of
the Convention.
- The
applicant also alleged that his continued detention despite his
illness violated Article 5 of the Convention. Moreover he claimed
under Article 6 that the proceedings relating to his request for
release of 10 June 2008 had been unfair, as the courts had based
their refusal to release him on his alleged dangerousness without
taking an expert opinion in that respect.
- The
Court notes that the applicant has not substantiated his complaint
under Article 5. Moreover, it is not called upon to decide whether
Article 6 applies to the proceedings relating to the applicant’s
request for release, as the complaint is in any case inadmissible for
the following reasons. When refusing the applicant’s request
for release the courts had particular regard to the decision of the
Vienna Court of Appeal of 3 March 2008 which had made an
assessment of the applicant’s dangerousness, having a medical
expert opinion before it. As there was only a short interval between
the respective decisions and there was no indication that any
relevant circumstances had changed, there is no indication that the
refusal to take a further expert opinion was arbitrary or that the
proceedings were otherwise unfair.
- It
follows that this part of the application is manifestly ill-founded
and must be rejected in accordance with Article 35 §§ 3 (a)
and 4 of the Convention.
For these reasons, the Court unanimously
Declares the application inadmissible.
André Wampach Nina Vajić
Deputy Registrar President
