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THIRD
SECTION
DECISION
AS TO THE
ADMISSIBILITY OF
Application no.
16987/02
by Leons LOBANOVS
against Latvia
The
European Court of Human Rights (Third Section), sitting on
28 September 2010 as a Chamber composed of:
Josep
Casadevall,
President,
Elisabet
Fura,
Corneliu
Bîrsan,
Alvina
Gyulumyan,
Egbert
Myjer,
Ineta
Ziemele,
Ann
Power, judges,
and
Santiago Quesada, Section
Registrar,
Having
regard to the above application lodged on 4 April 2002,
Having
regard to the observations submitted by the respondent Government,
Having
regard to the fact that the applicant has failed to submit
observations in reply,
Having
deliberated, decides as follows:
THE FACTS
- The
applicant, Mr Leons Lobanovs, is a Latvian national who was born in
1952 and lives in Daugavpils.
- The
Latvian Government (“the Government”) were represented by
their Agent, Mrs Inga Reine.
I. The circumstances of the case
- The
facts of the case, as submitted by the parties, may be summarised as
follows.
1.
Alleged ill-treatment and investigation
- On
13 April 1994, the applicant was found guilty of aggravated
infliction of bodily harm and sentenced to nine years' imprisonment.
The applicant began to serve his sentence in Jēkabpils
prison.
- On
11 December 1999, due to violations of the internal prison rules, the
applicant was transferred from Jēkabpils prison to Grīva
prison and on 11 May 2001 he was transferred to Daugavpils
prison.
- According
to the applicant, on 29 September 2001 in Daugavpils prison he had
felt weak due to being on hunger strike, and had lain down on the
floor. A prison guard had approached him and kicked him in the left
knee once. A day later another prison guard kicked him in the left
side four or five times. Afterwards, on 2 October 2001 the prison
guards humiliated the applicant several times by lifting him up
together with his bed and throwing it onto the floor.
- On
1 October 2001 the applicant complained to the prison doctor about
permanent pain in his left knee allegedly caused by ill-treatment by
a prison guard. According to the medical report the doctor detected a
deformation in the joint of the applicant's left knee. It also stated
that the knee was not swollen and the skin of the knee was of a
normal colour. It was concluded that the deformation of the
applicant's left knee was caused by chronic arthrosis. Following
another medical examination on 2 October 2001 the applicant was
diagnosed with inflammation of the left knee joint.
- On
26 October 2001 the applicant was transferred to the Central Prison
Hospital and on the same day he was admitted to the surgical unit of
the hospital, where his previous diagnosis was confirmed.
- On
29 October 2001 during a medical examination at the hospital the
applicant complained of a swollen knee. He also stated that a month
ago he had fallen on his left knee.
- On
10 November 2001 the applicant left the hospital after having
received medical treatment and having refused to have his knee
operated on.
- Meanwhile,
on 2 November 2001 the applicant had applied to the Specialised
Public Prosecutor's Office complaining that from 29 September to 2
October 2001 the Daugavpils prison guards had ill-treated him (see
paragraph 6 above). He also complained to the Latvian Prison
Administration about the circumstances of his transfer from
Daugavpils prison to the Central Prison Hospital between 25 October
and 27 October 2001, alleging that he had not been provided with
nutrition during the transfer.
- On
6 November 2001 a prosecutor from the Specialised Public Prosecutor's
Office met with the applicant in private and obtained statements from
him.
- On
8 November 2001 the Specialised Public Prosecutor's Office ordered a
forensic medical report on the applicant's knee injury.
- On
13 November 2001 the applicant underwent forensic medical tests. The
medical expert's referred to the applicant's medical history by
stating, inter alia, that in 1984 the applicant has complained
about pain in spine and his right leg. In order to reach a conclusion
the experts requested additional medical records from the Central
Prison Hospital.
- On
11 December 2001 the Latvian Prison Administration dismissed the
applicant's claim concerning the conditions of his transfer to the
Central Prison Hospital.
- On
12 December 2001 the forensic medical expertise concluded that the
swelling in the applicant's left knee was associated with chronic
changes to the knee joints caused by deforming arthrosis and
bursitis.
- On
13 December 2001 a prosecutor of the Specialised Public Prosecutor's
Office decided not to initiate criminal proceedings regarding the
alleged ill-treatment in Daugavpils prison. The decision was
supported by the results of the expert report and the results of the
internal investigation undertaken by the head of Daugavpils prison.
According to the latter, on 29 September, 30 September and 2
October 2001 prison guards had inspected the cell without using any
force against the applicant. The applicant did not appeal against the
decision to a prosecutor of a higher rank.
- From
26 July to 10 August 2002 the applicant was repeatedly admitted to
the Central Prison Hospital concerning his joint disease.
2.
Alleged inference with the applicant's right to respect for his
correspondence
- According
to the applicant, on 4 June 2001 he complained to the Prosecutor
General that the Grīva prison administration had confiscated
complaints he had drafted to various State institutions. He also
asked the Office of the Prosecutor to forward his letters, without
specifying their contents, to the State Language Centre and the
Minister of Justice. The letters to the latter authorities were in a
sealed envelope attached to the letter addressed to the Prosecutor
General.
- Following
the applicant's inquiry on 9 July 2001 the Office of the Prosecutor
General informed the applicant that it had not received his complaint
of 4 June 2001.
- On
18 July 2001, naming the document “a copy of the letter of
4 July 2001”, the applicant sent to the Prosecutor General
an identical complaint with attached sealed letters addressed to the
Ministry of Justice and the State Language Centre.
- On
3 August 2001 the Specialized Prosecutor's Office asked the Grīva
prison authority to examine the applicant's complaints, whereas the
letters addressed to other State institutions were returned to the
applicant informing him that they could be sent at his own expense
directly to the recipients.
- On
17 August 2001 the Specialized Public Prosecutor's Office replied to
the applicant on the merits of his complaint of 18 July 2001, which
was allegedly the copy of the letter from 4 June 2001.
- On
22 April 2002 the applicant repeatedly asked the Prosecutor General
to forward a sealed envelope to the Ministry of Justice.
- Following
the applicant's inquiry on 3 July 2002 the Specialized Public
Prosecutor's Office informed the applicant that it had not received
his complaint of 22 April 2002.
- On
29 September and 14 October 2002 the Ministry of Justice received
letters from the applicant.
II. Relevant domestic law
The Sentence Enforcement Code
- Under
section 50 of the code convicted persons have the right to write
proposals, submissions and complaints to State institutions, public
organisations and officials. Proposals, submissions and complaints of
convicted persons shall be sent to the appropriate persons and
decided in accordance with the procedures prescribed by law.
Proposals, submissions and complaints addressed to the prosecutor
shall not be monitored and shall be dispatched within twenty-four
hours (as worded at the material time).
COMPLAINTS
- The
applicant complained under Article 3 of the Convention that the
authorities of Daugavpils and Grīva prisons subjected him to
ill-treatment. He further complained that as a consequence he had
been scheduled for an operation, which was cancelled.
- The
applicant further complained under Article 3 of the Convention that
the authorities of Daugavpils and Grīva prisons did not send his
complaints addressed to various national authorities, thus depriving
him of the possibility to complain about the poor conditions of his
detention and the ill-treatment.
- The
applicant complained under Article 3 of the Convention about various
socio-economic problems, in particular, that he could not receive
unspecified social benefits and privatisation certificates
(privatizācijas sertifikāti).
He also complained that he had not been allowed to attend church in
Daugavpils prison.
THE LAW
I. Complaints under Article 3 of the Convention
1. Alleged ill-treatment in Daugavpils prison
- The
applicant complained under Article 3 of the Convention that the
authorities of Daugavpils prison had ill-treated him, in particular,
by using force (see paragraph 6 above) and failing to provide
nutrition during his transfer to the Central Prison Hospital. Article
3 of the Convention provides:
“No one shall be subjected to torture or to
inhuman or degrading treatment or punishment.”
- As
regards the applicant's allegation concerning use of force against
him, the Government supplemented additional information in support of
the initial argument that the applicant has not exhausted domestic
remedies, in particular, that he has not availed himself of the right
to appeal to a higher ranking prosecutor against the refusal to
institute criminal proceedings in respect of the alleged
ill-treatment.
- The
Court reiterates that evidence of allegations of ill-treatment must
be assessed according to the highest standard of proof, that is,
'beyond reasonable doubt', which may nevertheless also follow from
the coexistence of sufficiently strong, clear and concordant
inferences or of similar unrebutted presumptions of fact (Labita
v. Italy [GC], no. 26772/95, § 121, ECHR 2000 IV).
- The
Court observes that the medical reports do not support the
applicant's allegations. The medical reports from Daugavpils prison
and the Central Prison Hospital reveal that the applicant's knee was
deformed as a result of a chronic joint disease, and the same
diagnosis was confirmed by an independent medical forensic expert
report. Although at the time of lodging the application the applicant
disputed the medical experts' conclusions by alleging that they
referred to more than twenty year-old injuries, the report shows that
the conclusion was reached after an examination of the applicant and
his medical history. Besides, by raising this allegation the
applicant himself admitted that he had been suffering from a joint
disease at least since 1984 (see paragraph 14 above).
- The
Court also takes note of the fact that the information provided by
the applicant to the experts differs from his submissions to the
Court (see paragraph 9 above). Besides, two days after the alleged
ill-treatment the applicant's only complaint to the doctor was about
a painful knee. Had the applicant been subjected to the ill-treatment
he alleged, he would presumably have had more serious injuries.
- In
the light of the above, the facts of the case do not disclose an
appearance of a violation of Article 3.
- As
regards the applicant's complaint that he had not been provided with
nutrition during his transfer to the prison hospital between
25 October and 27 October 2001, the Government contested
the facts he presented. The Government contended that the applicant's
transfer from Daugavpils to the Central Prison Hospital commenced on
26 October 2001 and could not have taken more than four hours, and
that on the same day he had been admitted to the Central Prison
Hospital, where he received adequate nutrition.
- The
Court reiterates that failure to provide nutrition even for short
periods can lead to a violation of Article 3 (see Jeronovičs
c. Lettonie, no 547/02,
§ 39, 1 December 2009). In the present case, however,
there is no evidence in support of the applicant's allegations.
- It
follows that the complaints concerning ill-treatment in prison and
failure to provide nutrition during transfer are manifestly
ill-founded and must be rejected pursuant to Article 35 §§
3 and 4 of the Convention.
2. Investigation of the ill-treatment
- The
Court reiterates that even if ill-treatment under Article 3 has not
been established an applicant can nevertheless have an arguable claim
with respect to the obligation of the State authorities to
investigate the allegations (Dolenec v.
Croatia, no. 25282/06, §
150, 26 November 2009).
- The
Government argued that the applicant had not exhausted domestic
remedies (see paragraph 32 above).
- The
Court notes that the above-mentioned refusal to initiate criminal
proceedings was based on the conclusions of medical reports as well
as on the internal investigation conducted by the Chief of Daugavpils
prison, who concluded that there had been no ill-treatment. The
latter could raise doubts as to the independence and quality of the
investigation. Nevertheless, this could have been addressed in an
appeal to a superior prosecutor by the applicant.
- Since
no such appeal was lodged, the Court concludes that the applicant has
failed to exhaust the domestic remedies and the complaint in this
part should be rejected pursuant to Article 35 §§ 1 and 4
of the Convention.
3. Alleged lack of medical treatment
- The
applicant further complained under Article 3 that he had not received
appropriate medical treatment in prison, in particular, that he was
refused an operation on his knee.
- The
Government contested the facts submitted by the applicant. It argued
that he had not exhausted the domestic remedies by complaining about
the standard of his medical treatment. The Government alternatively
asserted that the complaint was inadmissible in that the applicant
had himself refused to have his knee operated on.
- The
applicant's medical reports reveal that from 26 October to
10 November 2001 he received treatment in the Central Prison
Hospital where he refused to have his knee operated on, and that he
was discharged from the hospital in a satisfactory condition. The
applicant was repeatedly admitted to the Central Prison Hospital from
26 July to 10 August 2002 where he repeatedly refused to have his
knee operated on because the operation was not urgent.
- Observing
that the applicant has received regular medical treatment for his
chronic illness and that the applicant has not availed himself of the
right to comment on his medical records provided by the Government,
this part of the application is therefore also manifestly ill-founded
and must be rejected pursuant to Article 35 §§ 3 and 4 of
the Convention.
II. Complaints under Article 8 of the Convention
- The
applicant further complained under Article 3 of the Convention that
the authorities of Daugavpils prison had failed to send his letters
addressed to State authorities (see paragraphs 19-26 above).
- It
may be recalled that the Court is free to attribute to the facts of
the case a characterisation in law different from that given by the
applicant. Thus the Court considers it more appropriate to examine
the complaint under Article 8 of the Convention, which provides:
“1. Everyone has the right to respect for
[...] his correspondence.
2. There shall be no interference by a public
authority with the exercise of this right except such as is in
accordance with the law and is necessary in a democratic society in
the interests of national security, public safety or the economic
well-being of the country, for the prevention of disorder or crime,
for the protection of health or morals, or for the protection of the
rights and freedoms of others.”
- The
Government raised the six-month rule with respect to the complaint
that the Daugavpils prison authorities failed to dispatch the
applicant's letter with annexes dated 4 June 2001 to the Prosecutor
General. Alternatively, it argued that the applicant had in fact
never sent the letter on the alleged date and that instead, the
letter and its annexes were sent to the Prosecutor General on 18 July
2001 and the applicant was confused about the dates (see paragraph 21
above).
- Leaving
aside the question whether the applicant submitted the letter to the
prison authorities on 4 June or 18 July 2001, the Court shares the
view that on 3 August 2001 the applicant was informed that the
letters to State authorities other than the Prosecutor's Office could
be sent by himself, therefore no circumstances existed which would
interrupt the running of the six-month period, which expired on 3
February 2002 (contrast Hilton v. United Kingdom, no.
12015/86, Commission decision of 6 July 1988). Therefore this part of
the complaint was submitted out of time.
- Concerning
the alleged failure of the Daugavpils prison authorities to dispatch
the applicant's letter of 22 April 2002 addressed to the Prosecutor
General asking him to forward the annexes of the letter to the
Ministry of Justice, the Government raised doubts as to whether such
a letter had existed at all. The Government asserted that in any
event the Office of the Prosecutor was not authorized to forward the
applicant's letters to other State institutions.
- The
Court observes that pursuant to the national legislation the
applicant had a right to address State authorities by sending
correspondence directly to the institutions concerned (see the law
part above). The applicant had been aware of the provision at least
since 3 August 2001 when the Office of the Prosecutor notified him of
it. It has to be noted that the applicant has not invoked any
obstacles which had prevented him from sending the letters directly
to the State authorities; moreover, later the same year the Ministry
of Justice received several letters sent by the applicant directly
from Daugavpils prison.
- It
follows that the above complaint is inadmissible under Article 35 §
3 as manifestly ill-founded.
III. Other complaints
- The
applicant also alleged violations of Article 3 of the Convention
concerning various socio-economic problems, in particular, that he
could not receive unspecified social benefits and privatisation
certificates. He also complained that he was not allowed to attend
church in Daugavpils prison.
- In the light of all the material in its possession,
and in so far as the matters complained of are within its competence,
the Court considers that this part of the application does not
disclose any appearance of a violation of any of the above Articles
of the Convention. It follows that these complaints are inadmissible
under Article 35 § 3 as manifestly ill-founded and
must be rejected pursuant to Article 35 § 4 of
the Convention.
For these reasons, the Court unanimously
Declares the application inadmissible.
Santiago Quesada Josep Casadevall Registrar President
